Opinion
No. 110,261.
2014-10-10
STATE of Kansas, Appellee, v. John Mark HINDMAN, Appellant.
Appeal from Kearny District Court; Robert J. Frederick, Judge.Heather Cessna, of Kansas Appellate Defender Office, for appellant.Lori L. Jensen, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Kearny District Court; Robert J. Frederick, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Lori L. Jensen, county attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., ARNOLD–BURGER, J., and DANIEL L. LOVE, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
John Mark Hindman pled no contest to one count of attempted indecent liberties with a child, a severity–level–7 person felony, and at sentencing, the district court imposed 24 months of postrelease supervision. The district court then corrected his sentence and imposed lifetime postrelease supervision under K.S.A.2011 Supp. 22–3717(d)(1)(G), a sentencing statute that requires lifetime postrelease supervision for people convicted of sexually violent crimes.
On appeal, Hindman argues that he should have received 12 months of postrelease supervision under subsection (d)(1)(C) of the postrelease-supervision statute, which requires 12 months of postrelease supervision for people convicted of severity–level–7 felonies. K.S.A.2011 Supp. 22–3717(d)(1)(C). But the district court was correct in imposing lifetime postrelease supervision because subsection (d)(1)(G) of the postrelease-supervision statute—which applies to sexually violent crimes—is a specific statute that more clearly applies to his case than subsection (d)(1)(C)—which applies to all types of crimes with a severity level of 7, 8, 9, or 10. See State v. Cameron, 294 Kan. 884, 898–900, 281 P.3d 143 (2012).
Hindman also argues that lifetime postrelease supervision is cruel and unusual punishment under § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution. But Hindman failed to ask the district court to make factual findings pertaining to this argument, and that precludes our review under § 9 of the Kansas Constitution and our review of a case-specific proportionality challenge under the Eighth Amendment. State v. Naputi, 293 Kan. 55, 67–68, 260 P.3d 86 (2011); State v. Mossman, 294 Kan. 901, 925, 281 P.3d 153 (2012). Without factual findings in the district court, we can only consider a categorical proportionality challenge under the Eighth Amendment, which challenges how a sentence is applied to a certain category of offenders or offenses. But in similar cases involving sexually violent crimes-the category at issue here-the Kansas Supreme Court has upheld lifetime postrelease supervision. See, e.g., Mossman, 294 Kan. at 930, 281 P.3d 153 (aggravated indecent liberties with a child); see also State v. Barrera, No. 104,667, 2013 WL 517581, at *9–10 (Kan.App.) (unpublished opinion) (attempted rape), rev. denied 297 Kan. 1248 (2013); State v. Russell, No. 107,588, 2013 WL 3867180, at *5 (unpublished opinion) (attempted aggravated indecent solicitation of a child), rev. denied June 20, 2014. We therefore find no categorical proportionality problem in this case under the Eighth Amendment, and we affirm the district court's judgment.
Factual and Procedural Background
The State charged 27–year–old John Mark Hindman with aggravated indecent liberties with a child for events that occurred with a 15–year–old child in January 2012. Hindman later pled no contest to attempted indecent liberties with a child, a severity–level–7 person felony, and the district court imposed a 25–month prison sentence with 24 months of postrelease supervision. The court did not pronounce the term of postrelease supervision from the bench at sentencing but included it on the written journal entry of judgment.
The State then filed a motion to correct an illegal sentence, arguing that Hindman should have been sentenced to lifetime postrelease supervision. Hindman countered that he should have been sentenced to 12 months of postrelease supervision. He also suggested that lifetime postrelease supervision would be unconstitutional, saying only that he “would like to preserve for the record that lifetime postrelease in this case with these circumstances would be unconstitutional as cruel and unusual punishment.” The district court imposed lifetime postrelease supervision but did not make any findings of fact related to Hindman's argument that lifetime supervision would be unconstitutional. Hindman has appealed to this court.
Analysis
I. The District Court Did Not Err When It Imposed Lifetime Postrelease Supervision.
The district court modified Hindman's original sentence by later imposing lifetime postrelease supervision. Courts generally do not have jurisdiction to increase legally imposed sentences. State v. Ballard, 289 Kan. 1000, 1010–11, 218 P.3d 432 (2009). But illegal sentences, including those that do not conform to the statutory provision setting out the sentence, can be corrected at any time. See K.S.A. 22–3504(1); State v. Gilbert, 299 Kan. ––––, ––––, 326 P.3d 1060 (2014).
The State argues that Hindman's initial sentence was illegal because K.S.A.2011 Supp. 22–3717(d)(1)(G) of the postrelease-supervision statute provides that people convicted of sexually violent crimes—including attempted indecent liberties with a child—must receive lifetime postrelease supervision:
“(d)(1)Persons sentenced for crimes, other than off-grid crimes, committed on or after July 1, 1993, or persons subject to subparagraph (G), will not be eligible for parole, but will be released to a mandatory period of postrelease supervision upon completion of the prison portion of their sentence as follows:
....
(G) Except as provided in subsection (u), 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.
(2) As used in this section, ‘sexually violent crime’ means
....
(B) indecent liberties with a child, K.S.A. 21–3503, prior to its repeal, or subsection (a) of K.S.A.2011 Supp. 21–5506, and amendments thereto;
(K.) an attempt, conspiracy or criminal solicitation, as defined in K.S.A. 21–3301, 21–3302 or 21–3303, prior to their repeal, or K.S .A.2011 Supp. 21–5301, 21–5302 or 21–5303, and amendments thereto, of a sexually violent crime as defined in this section.” K.S.A.2011 Supp. 22–3717(d)(1)(G), (d)(2)(B), (d)(2)(K).
Hindman counters that he should have received only 12 months of postrelease supervision because attempted indecent liberties with a child is a severity–level–7 crime, and another section of the postrelease-supervision statute, K.S.A.2011 Supp. 22–3717(d)(1)(C), says that people convicted of nondrug, severity–level–7 crimes must receive 12 months of postrelease supervision:
“(d)(1) Persons sentenced for crimes, other than off-grid crimes, committed on or after July 1, 1993, or persons subject to subparagraph (G), will not be eligible for parole, but will be released to a mandatory period of postrelease supervision upon completion of the prison portion of their sentence as follows:
....
(C) Except as provided in subparagraphs (D) and (E), persons sentenced for nondrug severity level 7 through 10 crimes and drug severity level 4 crimes must serve 12 months, plus the amount of good time and program credit earned and retained pursuant to K.S.A. 21–4722, prior to its repeal, or K.S.A.2011 Supp. 21–6821, and amendments thereto, on postrelease supervision.”
Hindman contends that under the rule of lenity—which provides that ambiguous penal statutes are narrowly construed in favor of the defendant—he should have received the lesser of the two penalties, or 12 months of postrelease supervision. Interpreting the postrelease-supervision statute presents a question of law over which we exercise unlimited review. State v. Brooks, 298 Kan. 672, 685, 317 P.3d 54 (2014).
The Kansas Supreme Court considered a nearly identical issue in State v. Cameron, 294 Kan. 884, 898–900, 281 P.3d 143 (2012), and held that offenders convicted of sexually violent crimes “must be sentenced to receive lifetime postrelease supervision upon release from prison.” In Cameron, the defendant's plea agreement stated that he would be sentenced to 24 months of postrelease supervision, but the district court imposed lifetime postrelease supervision under K.S.A. 22–3717(d)(1)(G) because the defendant had pled guilty to three counts of aggravated indecent solicitation of a child, which were severity–level–5, sexually violent offenses. 294 Kan. at 886, 281 P.3d 143. The defendant argued that the court had discretion to impose the 24 months of postrelease supervision under the plea agreement and should have done so under the rule of lenity because K.S.A. 22–3717(d)(1)(B) provides that people convicted of nondrug severity–level–5 felonies must serve 24 months of postrelease supervision. See K.S.A. 22–3717(d)(1)(B) (“persons sentenced for nondrug severity levels 5 and 6 crimes ... must serve 24 months ... on postrelease supervision”); 294 Kan. at 898–99, 281 P.3d 143.
The Kansas Supreme Court rejected that argument and applied subsection (d)(1)(G) to the case because it was the more specific subsection of the postrelease-supervision statute. 294 Kan. at 899–900, 281 P.3d 143. The court said that when it looked at the two subsections with a view of reconciling them, there was no reasonable doubt that the legislature intended the more specific and severe provision to apply to sexually violent offenses. 294 Kan. at 900, 281 P.3d 143; see also State v. Baber, 44 Kan.App.2d 748, 753, 240 P.3d 980 (2010) (finding that within the postrelease-supervision statute, the more specific provision for sexually violent crimes controlled over the general provision for severity–level–4 crimes), rev. denied 296 Kan. 1131 (2013).
Hindman is asking this court to apply the general postrelease-supervision provision for severity–level–7 crimes, subsection (d)(1)(C), over the specific statute for sexually violent crimes, subsection (d)(1)(G). But under Cameron, when a defendant is convicted of a severity–level–7 crime that is also sexually violent, he or she must receive lifetime postrelease supervision. 294 Kan. at 898–900, 281 P.3d 143; see also Ballard, 289 Kan. at 1012, 218 P.3d 432 (correcting an illegal sentence in part because the defendant committed a sexually violent crime and should have been subject to mandatory lifetime postrelease supervision pursuant to K.S.A. 22–3717[d][1] [G] ); State v. Lobmeyer, No. 110,209, 2014 WL 3907097, at *2–4 (Kan.App.2014) (unpublished opinion) (finding that a 24–month period of postrelease supervision was an illegal sentence for a sexually violent crime). Any other postrelease-supervision sentence is illegal.
The legislature has actually addressed this potential conflict directly in the statute. While not discussed in Cameron, subsection (d)(1) of the statute specifically states that the postrelease-supervision sentences that are based on the severity level of the crime do not apply to people convicted of sexually violent crimes:
“(d)(1) Persons sentenced for crimes, other than ... persons subject to subparagraph (G), will not be eligible for parole, but will be released to a mandatory period of postrelease supervision upon completion of the prison portion of their sentence as follows:
(A) ... persons sentenced for nondrug severity level 1 through 4 crimes ... must serve 36 months....
(B) ... persons sentenced for nondrug severity levels 5 and 6 crimes ... must serve 24 months....
(C) ... persons sentenced for nondrug severity level 7 through 10 crimes ... must serve 12 months....
....
(G) ... 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.” (Emphasis added.) K.S.A.2011 Supp. 22–3717(d)(1).
Because Hindman was convicted of a sexually violent crime, subsection (d)(1)(C)—which sets out the postrelease-supervision period for severity–level–7 crimes—does not apply to him. Since he originally received only 24 months of postrelease supervision, that sentence was illegal, and the district court did not err in correcting it.
II. Hindman's Sentence of Lifetime Postrelease Supervision Is Not Cruel and Unusual Punishment.
Hindman also argues that his lifetime postrelease-supervision sentence constitutes cruel and unusual punishment under § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution. As he notes, if he violates his postrelease conditions by committing a new felony, he could be incarcerated for life. See K.S.A.2011 Supp. 75–5217(c) (“upon revocation [of postrelease supervision], the inmate shall serve the entire remaining balance of the period of postrelease supervision even if the new conviction did not result in the imposition of a new term of imprisonment”).
Hindman acknowledges that while he made a brief statement about cruel and unusual punishment to preserve this issue for appeal, he did not ask the district court to make factual findings about his cruel-and-unusual-punishment arguments. This lack of findings forecloses several of his constitutional arguments.
First, this court cannot consider his argument that lifetime postrelease supervision violates § 9 of the Kansas Constitution because that analysis requires factual findings on the three-part test established in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978). State v. Naputi, 293 Kan. 55, 67–68, 260 P.3d 86 (2011) (holding that factual findings on the Freeman factors are required to properly preserve a cruel-and-unusual-punishment issue under the Kansas Constitution for appeal). Hindman argues that Naputi is wrongly decided, but we must follow Kansas Supreme Court precedent without some indication that the court is departing from its previous position. State v. Acevedo, 49 Kan.App.2d 655, 670, 315 P.3d 261 (2013), petition for rev. filed December 23, 2013. There is no indication that the Supreme Court is abandoning its position, so we cannot consider Hindman's arguments under § 9 of the Kansas Constitution. See State v. Mossman, 294 Kan. 901, 906, 281 P.3d 153 (2012).
Second, without factual findings, this court cannot consider any case-specific Eighth Amendment challenge to the term of postrelease supervision. Under Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), Eighth Amendment challenges to term-of-years sentences like Hindman's fall into two classes: case-specific proportionality challenges, where defendants challenge the length of a sentence in light of the circumstances of a case, and categorical proportionality challenges, where defendants challenge the application of a sentence to a certain class of offenders or offenses. Mossman, 294 Kan. at 925, 281 P.3d 153; Cameron, 294 Kan. at 895, 281 P.3d 143. When considering a case-specific proportionality challenge, the court looks at factors that are “case specific and inherently factual”—things like prior criminal history and the actual harm caused to the victim. State v. Gomez, 290 Kan. 858, 864, 235 P.3d 1203 (2010). Consequently, a case-specific proportionally claim requires factual findings from the district court, and this court cannot consider it on appeal without district court findings. See Mossman, 294 Kan. at 922, 925, 281 P.3d 153; Gomez, 290 Kan. at 864, 235 P.3d 1203. Accordingly, we will not consider any claim that the sentence violates Eighth Amendment standards based specifically on the facts of Hindman's case.
We can still consider a categorical proportionality challenge because that does not require a review of the district court's factual findings. See Mossman, 294 Kan. at 925, 281 P.3d 153. Categorical challenges raise only questions of law over which this court has unlimited review. State v. Williams, 298 Kan. 1075, 1086, 319 P.3d 528 (2014).
A categorical analysis has two steps. First, a court determines whether there is a national consensus against the sentencing practice at issue, and second, it exercises its own judgment to determine whether the punishment in question violates the Constitution. Williams, 298 Kan. at 1087, 319 P.3d 528. The second step requires that the court consider “ “ “the standards elaborated by controlling precedents and by the Court's own understanding and interpretation of the Eighth Amendment's text, history, meaning, and purpose.” “ “ 298 Kan. at 1087, 319 P.3d 528 (quoting Graham, 560 U.S. at 61).
The Kansas Supreme Court has analyzed categorical challenges in cases similar to Hindman's by relying on the Ninth Circuit's categorical analysis in United States v. Williams, 636 F.3d 1229 (9th Cir.), cert. denied ––– U.S. ––––, 132 S.Ct. 188, 181 L.Ed.2d 96 (2011). See e.g., Williams, 298 Kan. 1088–89. Under the first step, the Kansas Supreme Court has found that the prevalence of lifetime postrelease supervision for sex offenders in the United States indicates that society is comfortable with such sentences. Williams, 298 Kan. at 1088–89, 319 P.3d 528; Mossman, 294 Kan. at 929–30, 281 P.3d 153. Under the second step, the court has held that lifetime postrelease supervision serves the valid penological objectives of deterrence, incapacitation, and rehabilitation of sex offenders, concluding that lifetime postrelease supervision is not cruel and unusual punishment for defendants convicted of certain sexually violent crimes, including crimes similar to Hindman's. See Williams, 298 Kan. at 1090, 319 P.3d 528 (sexual exploitation of a child); Cameron, 294 Kan. at 898, 281 P.3d 143 (aggravated indecent solicitation of a child); Mossman, 294 Kan. at 930, 281 P.3d 153 (aggravated indecent liberties with a child); see also Lobmeyer, 2014 WL 3907097, at *7–8 (indecent liberties with a child); State v. Russell, No. 107,588, 2013 WL 3867180, at *5 (Kan.App.) (unpublished opinion) (attempted aggravated indecent solicitation of a child), rev. denied June 20, 2014; State v. Barrera, No. 104,667, 2013 WL 517581, at *9–10 (Kan.App.) (unpublished opinion) (attempted rape), rev. denied 297 Kan. 1248 (2013).
In Hindman's case, attempted indecent liberties may take two forms: attempting to (1) engage in or (2) solicit any lewd fondling or touching of a child who is 14 or 15 years old, with the intent to arouse or satisfy the sexual desire of either party. See K.S.A.2011 Supp. 21–5301(a); K.S.A.2011 Supp. 21–5506(a)(1)–(2). Regardless of which form applies in Hindman's case, we find that there is no way to distinguish Hindman's case from the Kansas appellate cases we have just cited that rejected categorical challenges. We conclude that lifetime postrelease supervision is not cruel and unusual punishment for attempted indecent liberties with a child.
The most similar prior case is Lobmeyer, 2014 WL 3907097, at *7–8, where this court found that lifetime postrelease supervision was not cruel and unusual punishment for the crime of indecent liberties with a child because society is comfortable with lifetime postrelease supervision for sex offenders and because lifetime postrelease supervision serves the valid penological objectives of deterrence, incapacitation, and rehabilitation.
The fact that Hindman's crime was attempted rather than carried out does not change the categorical analysis. The Kansas Supreme Court's conclusion that society is comfortable with lifetime postrelease supervision applies to attempted sexually violent crimes: In Mossman and Cameron, the court analyzed whether lifetime postrelease supervision was constitutional for “sex offenses.” See Russell, 2013 WL 3867180, at *4–6; Barrera, 2013 WL 517581, at *9–10. And offenders who are guilty of attempting to commit a crime still have the intent required to commit it, so the penological objectives for lifetime postrelease supervision are the same whether the offender has committed a sexually violent crime or attempted one but did not complete it. See K.S.A.2011 Supp. 21–5301(a) (“An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime”); State v. Martinez, 290 Kan. 992, 1004, 236 P.3d 481 (2010). We find that lifetime postrelease supervision for attempted indecent liberties with a child is not cruel and unusual punishment under the Eighth Amendment to the United States Constitution. Williams, 298 Kan. at 1089–90, 319 P.3d 528; Cameron, 294 Kan. at 898, 281 P.3d 143; Mossman, 294 Kan. at 930, 281 P.3d 153; see Acevedo, 49 Kan.App.2d at 670, 315 P.3d 261; Russell, 2013 WL 3867180, at *5.
We therefore affirm the district court's judgment.