Opinion
111,469.
06-05-2015
STATE of Kansas, Appellee, v. Theodore McADAMS, III, Appellant.
Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant. Cheryl M. Pierce, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.
Cheryl M. Pierce, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before SCHROEDER, P.J., GREEN, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Just prior to release from prison, Theodore McAdams, III, was resentenced to lifetime postrelease supervision to correct an illegal sentence imposed at his original sentencing. McAdams now appeals the imposition of lifetime postrelease supervision and presents us with only one compound issue to address; Is a sentence to lifetime postrelease supervision grossly disproportionate in violation of the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights ?
Pursuant to a plea agreement, McAdams pled guilty to two amended counts of indecent liberties with a child under K.S.A. 21–3503(a)(l), severity level 5 person felonies, and the State dismissed the remaining count. At sentencing, the district court felonies, and the State dismissed the remaining count. At sentencing, the district court found McAdams' participation in a sex treatment program would be in the best interest of the community and for his rehabilitation. Accordingly, the district court sentenced McAdams to an underlying prison term of 63 months' imprisonment, with 24 months' postrelease supervision, and placed him on 36 months' supervised probation. As a condition of probation, the district court ordered that McAdams have no unsupervised contact with minors and no contact whatsoever with the victim.
The State filed a motion alleging McAdams violated the no-contact condition of his supervised probation. At his probation revocation hearing, McAdams stipulated to violating the conditions of his probation by having contact with the minor victim. The district court accepted McAdams' stipulation and revoked his probation. McAdams was ordered to serve his original 63–month prison sentence with a postrelease supervision period of 24 months.
Shortly before McAdams was scheduled for release from prison, the State filed a motion to correct an illegal sentence, alleging that his 24–month period of postrelease supervision previously ordered by the district court was illegal and should be corrected to lifetime postrelease supervision pursuant to K.S.A. 22–3717(d)(1)(G) and (d)(2)(B). In response, McAdams argued lifetime postrelease supervision was unconstitutional as the punishment was disproportionate to his crime of conviction and constituted cruel and unusual punishment contrary to the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights. The district court heard arguments, took the matter under advisement, and issued a detailed written decision granting the State's motion, finding that lifetime postrelease supervision was not unconstitutional in his case and did not violate the Eighth Amendment to the United States Constitution or § 9 of the Kansas Constitution Bill of Rights. The district court's analysis included the three factors outlined in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978).
With McAdams present, the district court subsequently resentenced him to a lifetime term of postrelease supervision. McAdams timely appealed.
Here, the district court correctly analyzed and applied the Freeman factors pursuant to § 9 of the Kansas Constitution Bill of Rights to find the imposition of lifetime postrelease supervision under the facts was constitutional. Additionally, we note the Kansas Supreme Court recently addressed this very question in State v. Funk, 301 Kan. ––––, Syl. ¶ 3, –––P.3d –––– (2015) (No. 107,422, filed May 15, 2015):
“Under the facts of this case, a defendant's sentence of lifetime postrelease supervision for the crime of attempted indecent solicitation of a child is not cruel or unusual punishment under Section 9 of the Kansas Constitution Bill of Rights. The punishment is not so disproportionate that it shocks the conscience and offends fundamental notions of human dignity. Factors leading to this conclusion include: the nature of the offense, which is serious and is a sex crime against a minor that historically has been treated as a forcible or violent felony; and the penological goals of postrelease supervision, which include retribution, deterrence, incapacitation, and rehabilitation. These factors outweigh the lack of strict proportionality with other sentences in Kansas and other jurisdictions, especially given that the sentence is not grossly disproportionate.”
Finally, we note McAdams' brief admits the analysis for a violation of the Eighth Amendment to the United States Constitution is the same as the analysis required to test a violation of § 9 of the Kansas Constitution Bill of Rights. With that acknowledgment by McAdams, we conclude lifetime postrelease supervision does not constitute cruel and unusual punishment under the Eighth Amendment. See State v. Ross, 295 Kan. 424, 426–30, 284 P.3d 309 (2012).
For the reasons set forth above, we affirm the district court under Supreme Court Rule 7.042(b)(3), (5) and (6) (2014 Kan. Ct. R. Annot. 67).
Affirmed.