Opinion
No. 103,818.
2013-02-22
STATE of Kansas, Appellee, v. Enrique LAZO–GAITAM, Appellant.
Appeal from Saline District Court; Rene S. Young, Judge. Rachel L. Pickering, 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; Rene S. Young, Judge.
Rachel L. Pickering, 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., Hill and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Enrique Lazo–Gaitam appeals the lifetime postrelease supervision portion of his sentence imposed after he pled no contest to aggravated sexual battery. He contends that the sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights. Lazo–Gaitam argues that his punishment was disproportionate to the nature of his conviction and that a lifetime postrelease supervision sentence categorically violates the constitution. Because we do not find his sentence to be disproportionate or categorically unconstitutional, we affirm.
Facts
On August 24, 2009, Lazo–Gaitam pled no contest to an amended complaint charging him with one count of aggravated sexual battery. At the plea hearing, the State relied on its probable cause affidavit regarding the factual basis for the plea. According to the affidavit, Lazo–Gaitam invited a coworker—who was over the age of 16—to his motel room. Initially, he talked to the victim outside the room, where he tried to kiss the victim. Lazo–Gaitam then went inside the room, saying he had to do something, and the victim also went into the room because she did not want to be alone outside.
Once they were inside the room, Lazo–Gaitam locked the door and sat on the bed with the victim. He then pushed her down onto the bed, got on top of her, and forcibly took off her pants. The victim told Lazo–Gaitam to stop and attempted to push him off her several times. He then pushed the victim's underwear to the side and had sexual intercourse with her against her will. After he was finished, Lazo–Gaitam attempted to keep her from leaving the room and told her not to call the police. But she was eventually able to leave and called the police. A nurse who subsequently examined the victim noticed that her pants were torn.
Prior to sentencing, Lazo–Gaitam filed a motion requesting that the district court grant him probation. Although he fell within a border box on the sentencing grid, and the State recommended probation in accordance with the plea agreement, the district court denied Lazo–Gaitam's motion for probation at a sentencing hearing held on October 15, 2009. Instead, the district court sentenced him to 32 months' imprisonment. Because defense counsel argued that lifetime postrelease supervision constituted cruel and unusual punishment, the district court took the issue under advisement and allowed Lazo–Gaitam to file a formal motion.
On October 22, 2009, Lazo–Gaitam filed a motion challenging the constitutionality of lifetime postrelease supervision. Specifically, he argued that lifetime postrelease supervision amounted to cruel and unusual punishment. On December 9, 2009, the district court held a hearing on the motion. After considering the factors set forth in State v. Freeman, 223 Kan. 362, Syl. ¶ 2, 574 P.2d 950 (1978), the district court rejected Lazo–Gaitam's argument and imposed lifetime postrelease supervision under K.S.A.2009 Supp. 22–3717(d)(1)(G). Thereafter, Lazo–Gaitam timely appealed.
Analysis
Proportionality Challenge
Lazo–Gaitam contends that his lifetime postrelease supervision sentence violates the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights. It is undisputed that K.S.A.2009 Supp. 22–3717(d)(1)(G) mandates that a person convicted of a sexually violent crime must “be released [from prison] to a mandatory period of postrelease supervision for the duration of the person's natural life.” Furthermore, it is undisputed that pursuant to K.S.A.2009 Supp. 22–3717(d)(2)(I), aggravated sexual battery is a sexually violent crime.
The constitutionality of a sentencing statute is a question of law over which appellate courts exercise unlimited review. See State v. Allen, 283 Kan. 372, 374, 153 P.3d 488 (2007). In deciding whether a sentence constitutes cruel and unusual punishment, we review all the evidence to determine whether there is sufficient support for the district court's findings of fact. Moreover, the legal conclusions drawn from the facts are then reviewed de novo. See State v. Mossman, 294 Kan. 901, 906, 281 P.3d 153 (2012).
The Eighth Amendment to the United States Constitution, which the Fourteenth Amendment makes applicable to the States, provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (Emphasis added.) Similarly, § 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 great. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.” (Emphasis added.)
The United States Supreme Court interpreted the Eighth Amendment to find that “[e]mbodied 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.’ [Citation omitted.]” Graham v. Florida, 560 U.S. ––––, 130 St. Ct.2011, 2021, 176 L.Ed.2d 825 (2010). Likewise, the Kansas Supreme Court has interpreted § 9 of the Kansas Constitution Bill of Rights to allow a challenge to an “excessive or disproportionate sentence.” State v. McDaniel & Owens, 228 Kan. 172, 185, 612 P .2d 1231 (1980).
Regarding proportionality challenges to a term-of-years sentence, the Kansas Supreme Court has described two general categories: “The first classification involves challenges that argue the term of years is grossly disproportionate given all the circumstances in a particular case. The second classification comprises cases in which the court implements the proportionality standard by certain categorical restrictions.” State v. Gomez, 290 Kan. 858, Syl. ¶ 4, 235 P.3d 1203 (2010). Here, Smith argues that the sentence is disproportionate because of the nature of the offense and character of the offender, based on a comparison of the punishment to other punishments our legislature has assigned to other offenses, and in light of the punishment for similar crimes in other states.
Recently, the Kansas Supreme Court filed two decisions that address similar constitutional arguments regarding mandatory lifetime postrelease supervision sentences under 22–3717(d)(1)(G)—State v. Cameron, 294 Kan. 884, 281 P.3d 143 (2012), and Mossman, 294 Kan. 901. In both cases, our Supreme Court rejected arguments similar to those asserted by Smith in the present case. In doing so, both issues were analyzed under the factors set forth in Freeman, 223 Kan. 367.
In Freeman, the Kansas Supreme Court set out the following three factors to be considered in determining the proportionality of a sentence:
“(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.” 223 Kan. at 367.
None of the Freeman factors is controlling. As long as each factor is considered, one consideration can direct the final conclusion if it weighs heavily enough. Ortega–Cadelan, 287 Kan. 157, 161, 194 P.3d 1195 (2008). Only the first Freeman factor requires consideration of the individual facts of a case. “Particularly where arguments focus upon proportionality ... the factual aspects of the test are a necessary part of the overall analysis.” Ortega–Cadelan, 287 Kan. at 161.
Regarding the first Freeman factor, Lazo–Gaitam contends that the district court's ruling was erroneous because, considering the nature of the offense and his character, the sentence is so disproportionate that it shocks the conscience and offends fundamental notions of human dignity. But the Kansas Legislature has determined that sexually violent crimes deserve mandatory lifetime postrelease supervision, and statutes are presumed to be constitutional. See State v. Woodard, 294 Kan. 717, 720, 280 P.3d 203 (2012); State v. Laturner, 289 Kan. 727, 735, 218 P.3d 23 (2009). Additionally, it is not our role “to criticize the legislature or to substitute its view on economic or social policy; it is the duty of this court to safeguard the constitution.” See State ex rel. Six v. Kansas Lottery, 286 Kan. 557, 562, 186 P.3d 183 (2008).
Here, Lazo–Gaitam used force to push the victim onto the bed and to pull down her pants, tearing them in the process. Although the victim attempted to push Lazo–Gaitam off of her, she was unable to do so. He then had sex with the victim without her consent. Following the attack, Lazo–Gaitam refused to allow the victim to leave the room and told her not to call the police.
Although Lazo–Gaitam claims he did not have sex with the victim without her consent, the district court found he was not credible. Lazo–Gaitam also argues that he never pushed the victim and that he did not forcibly remove her pants. But we cannot weigh the evidence on appeal. See Mossman, 294 Kan. at 906. Accordingly, we find that substantial competent evidence supports the district court's findings and that the first Freeman factor does not weigh in Lazo–Gaitam's favor.
The second Freeman factor requires comparing a challenged punishment with punishments imposed in the same jurisdiction for more serious offenses. Under this factor, if a more serious crime is punished less severely than the offense in question, its penalty is suspect. Freeman, 223 Kan. at 367. The district court determined:
“The defendant in his brief lists 22 offenses that he believes are more serious that carry shorter periods of postrelease supervision. The court has reviewed those and considered those. The State disagrees in its response that those offenses are more serious than a sexual offense committed with violence and done without the consent of the victim.
“In reviewing the offenses that were listed by the defendant that he claims are more serious that do not require lifetime postrelease supervision, the court would agree with the defendant that several of those offenses, depending upon the underlying facts, could be as serious, more specifically those being second degree murder and aggravated kidnapping and, I suppose, also the aggravated human trafficking.”
Lazo–Gaitam contends that the postrelease restrictions on his freedom for aggravated sexual battery are greater than those imposed upon someone convicted of murder or other crimes of a higher severity. But we do not find that his sentence was so grossly disproportionate as to be unconstitutional, especially when it is viewed in light of its penological purpose and the seriousness of the crime. See Mossman, 294 Kan. at 917;Cameron, 294 Kan. at 892–93. As the Kansas Supreme Court has found, “there are ‘grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class. The risk of recidivism posed by sex offenders is “frightening and high.” ‘ “ Mossman, 294 Kan. at 909–10 (quoting Smith v. Doe, 538 U.S. 84, 103, 123 S.Ct. 1140, 155 L.Ed.2d 164 [2003] ). Thus, we do not find the difference between Smith's sentence and the sentences for other crimes he has listed under the second Freeman factor to be so disproportionate that this factor outweighs the first Freeman factor.
The third Freeman factor requires a comparison of the sentence imposed with punishments in other jurisdictions for the same offense. Freeman, 223 Kan. at 367. Although Lazo–Gaitam concedes that there are other jurisdictions that require lifetime postrelease supervision sentences, he argues that most of the states—with the exception of Kansas and Nebraska—allow for the possibility of discharge or release from lifetime postrelease supervision. According to Lazo–Gaitam, lifetime postrelease supervision is reserved for more serious offenses, repeat offenses, or offenders found to have certain characteristics that make them dangerous or likely to reoffend.
In Mossman, after a lengthy exploration of the punishment for violent sex offenses in other jurisdictions, the Kansas Supreme Court found:
“[I]t seems fair to say that less 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 Mossman's, 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.” 294 Kan. at 920.
The Kansas Supreme Court has not specifically compared the punishment for aggravated sexual battery in Kansas to punishment for similar crimes in other jurisdictions. But we believe the analysis in Mossman regarding the third Freeman factor is equally applicable in the present case. Certainly, Kansas is not alone in imposing mandatory lifetime postrelease supervision for violent sex offenders. Moreover, we find that the Kansas Legislature has the authority to mandate lifetime postrelease supervision for sexually violent offenders because it has determined that violent sex offenders pose a unique threat to society. Thus, even though the punishment for sexually violent offenders in Kansas may be more severe than in other jurisdictions, we do not find a sentence of mandatory lifetime postrelease supervision to be either cruel or unusual.
Finally, we note that the Kansas Supreme Court has found that an analysis under the Freeman factors can be applied “with equal force to the first of the classifications for an Eighth Amendment challenge.” State v. Ross, 295 Kan. 424, 429, 284 P.3d 309 (2012). For this reason, we conclude that the imposition of mandatory lifetime postrelease supervision does not constitute cruel and unusual punishment under the Eighth Amendment to the United States Constitution or cruel or unusual punishment under § 9 of the Kansas Constitution Bill of Rights. Categorical Challenge
Lazo–Gaitam also raises a categorical challenge to lifetime postrelease supervision, contending that it is cruel and unusual punishment when imposed for the class of crime he committed. “[A] categorical proportionality analysis under the Eighth Amendment does not require a review of the district court's factual findings. Instead, only questions of law are implicated. This court has unlimited review over legal questions. [Citations omitted.]” Mossman, 294 Kan. at 925. Although it is questionable whether a categorical challenge is appropriate in the present case, the Mossman court chose “to address the issue rather than foreclose an argument based on what may turn out to be an unintended, overly strict reading of the Graham decision.” 294 Kan. at 927. Thus, we will do likewise.
The United States Supreme Court has set forth the following analysis to be applied when considering a categorical challenge under the Eighth Amendment:
“The Court first considers ‘objective indicia of society's standards, as expressed in legislative enactments and state practice’ to determine whether there is a national consensus against the sentencing practice at issue. [Citation omitted.] Next, guided by ‘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,’ [citation omitted,] the Court must determine in the exercise of its own independent judgment whether the punishment in question violates the Constitution. [Citation omitted.]” Graham, 130 S.Ct. at 2022.
Further explaining the application of these factors, the Graham Court stated:
“Community consensus, while ‘entitled to great weight,’ is not itself determinative of whether a punishment is cruel and unusual. [Citation omitted.] In accordance with the constitutional design, ‘the task of interpreting the Eighth Amendment remains our responsibility.’ [Citation omitted.] The judicial exercise of independent judgment requires consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of punishment in question. [Citations omitted.] In this inquiry the Court also considers whether the challenged sentencing practice serves legitimate penological goals. [Citations omitted.]” Graham, 130 S.Ct. at 2026.
Here, Lazo–Gaitam belongs to a class of offenders convicted of aggravated sexual battery. The statutory definition of aggravated sexual battery is the “intentional touching of the person of another who is 16 or more years of age and who does not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another” and when the victim is either overcome by force or fear, unconscious or physically powerless, or incapable of giving consent because of mental deficiency, disease, the effect of alcohol or drugs. See K.S.A. 21–3518.
Lazo–Gaitam argues that there is a “national consensus against mandatory lifetime postrelease supervision without the possibility of release or discharge for this class of offenses.” But in Cameron, the Kansas Supreme Court cited United States v. Williams, 636 F.3d 1229 (9th Cir.2011), cert. denied132 S.Ct. 188 (2011), as follows:
“ ‘Here, “objective indicia” suggest that society is comfortable with lifetime sentences of supervised release for sex offenders, as such sentences are common. According to the United States Sentencing Commission, in the last five years, federal courts have sentenced 1875 defendants convicted of child pornography and child prostitution crimes to lifetime supervised release. See U.S. Sentencing Comm'n, Federal Offenders Sentenced to Supervised Release 58–59 (July 2010), www.ussc. gov/general/20100722—Supervised—Release. pdf. By way of comparison, in banning the sentence of life without parole for juvenile nonhomicide offenders, the Supreme Court noted that there were then just 123 people in the county serving such sentences. See Graham, 130 S.Ct. at 2024. Further, the percentage of federal sex offenders receiving life terms of supervised release is increasing, climbing from 9.3 percent in 2005, to 20.5 percent in 2009. [Citation omitted.]’ Williams, 636 F.3d at 1233–34.” Cameron, 294 Kan. at 897.
Even though lifetime postrelease supervision may be a severe penalty, it is not as severe as capital punishment or mandatory life without parole for a nonhomicide offense, which are the sentences found by the United States Supreme Court to be categorically unconstitutional when applied to juveniles or offenders whose intellectual functioning is in a low range. See Graham, 130 S.Ct. at 2022. Furthermore, the Kansas Supreme Court has stated: “[W]hile the sentence is lengthy, lifetime postrelease supervision is not as harsh a punishment as imprisonment and is aimed at safely integrating a sex offender into society and protecting the public.” Cameron, 294 Kan. at 896. Unlike life without parole—which means that the person will die in prison—lifetime postrelease supervision does not “mean[ ] denial of hope” or that “good behavior and character improvement are immaterial.” Graham, 130 S.Ct. at 2027.
Lazo–Gaitam next argues that lifetime postrelease supervision does not serve the legitimate penological goals. See Graham, 130 S.Ct. at 2028. But the Kansas Supreme Court has found
“the goals of rehabilitation and incapacitation ‘are central purposes of the criminal justice system, and they are particularly critical here given the propensity of sex offenders to strike again.’ More specifically, the court noted: ‘Supervised release can further the end of rehabilitating sex offenders.... Relatedly, supervised release helps incapacitate sex offenders by keeping them under the watchful eye of probation officers who may be able to detect problems before they result in irreparable harm to innocent children.’ Williams, 636 F.3d at 1234.” Cameron, 294 Kan. at 898.
Furthermore, retribution is another recognized penological justification; “[s]ociety is entitled to impose severe sanctions on a ... nonhomicide offender to express its condemnation of the crime and to seek restoration of the moral imbalance caused by the offense.” Graham, 130 S.Ct. at 2028. Here, we find that it is appropriate for society to impose lifetime postrelease supervision on a person convicted of aggravated sexual battery because of the high rate of recidivism and danger posed by this category of offenders. See Mossman, 294 Kan. at 909–10. Hence, although one can question its deterrent effect, we find that lifetime postrelease supervision is sufficiently justified by the combined penological goals of rehabilitation, incapacitation, and retribution. We, therefore, conclude that Lazo–Gaitam's sentence of lifetime postrelease supervision under K.S.A.2009 Supp. 22–3717(d)(1)(G) for his conviction of aggravated sexual battery is not categorically disproportional and, accordingly, is not cruel and unusual punishment under the Eighth Amendment to the United States Constitution.
Affirmed.