Opinion
No. 107,087.
2012-11-16
STATE of Kansas, Appellee, v. David McDANIEL, Appellant.
Appeal from Cloud District Court; Kim W. Cudney, Judge. Heather Cessna, of Kansas Appellate Defender Office, for appellant. Robert A. Walsh, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Cloud District Court; Kim W. Cudney, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Robert A. Walsh, county attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., MARQUARDT, J., and BRAZIL, S.J.
MEMORANDUM OPINION
PER CURIAM.
David McDaniel appeals from the sentence imposed following his no contest plea to sexual exploitation of a child under K.S.A.2010 Supp. 21–3516. On appeal, McDaniel argues the lifetime postrelease supervision ordered is cruel and unusual punishment for his crime and, therefore, is unconstitutional. McDaniel also contends the district court's order requiring lifetime registration under the Kansas Offender Registration Act is an illegal sentence. We affirm in part, vacate in part, and remand with instructions.
In November 2010, McDaniel was charged with one count each of aggravated criminal sodomy, aggravated indecent solicitation of a child, and indecent solicitation of a child.
Approximately 8 months after being charged, McDaniel pled no contest to an amended complaint charging him with one count of sexual exploitation of a child, a severity level 5 person felony. In exchange for the plea, the State agreed to dismiss the original charges. Both parties agreed not to seek a departure sentence and stipulated that McDaniel possessed a visual depiction of a child under the age of 18 in sexually explicit conduct with the intent to arouse McDaniel's sexual desires.
Prior to sentencing, McDaniel filed a motion challenging the court's imposition of lifetime postrelease supervision as unconstitutional under K.S.A.2010 Supp. 22–3717. McDaniel stated that the presumptive postrelease supervision period for other severity level 5 non-drug felonies was 24 months, with court discretion to depart and impose up to 60 months postrelease supervision if substantial and compelling reasons exist. McDaniel argued that imposition of lifetime postrelease supervision is cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution. McDaniel also argued that the order was arbitrary and disproportionate for a severity level 5 conviction and a criminal history of I. He also cited comparable laws in other jurisdictions.
On July 29, 2011, McDaniel filed a “Motion Objecting to Unconstitutional Mandatory Imposition of Lifetime Postrelease Supervision.” The district court denied McDaniel's motion, and McDaniel filed a timely notice of appeal.
Lifetime Postrelease Supervision
On appeal, McDaniel contends that the imposition of lifetime postrelease supervision for his conviction of sexual exploitation of a child was grossly disproportionate to the seriousness of the crime. McDaniel asserts that this part of his sentence is cruel and unusual punishment under the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights.
The State asserts that the defendant cannot raise a constitutional challenge in this appeal because he failed to present this issue to the trial court.
In this case, McDaniel filed a motion in the district court challenging the constitutionality of the lifetime postrelease supervision statute. However, the motion failed to address all of the factors used to analyze an Eighth Amendment challenge. In State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), the Kansas Supreme Court established a three-part test to aid in determining the issue:
“(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.” (Emphasis added.)
The record on appeal does not make it possible for this court to conduct a Freeman analysis. There is no evidence other than a stipulated fact basis for the plea to ascertain the actual criminal conduct in this case. The only information concerning the three Freeman factors was contained in McDaniel's motion objecting to lifetime postrelease supervision and stating that his criminal history score is I and the charge was a severity level 5 offense. At the hearing, defense counsel argued:
“I do believe that a lifetime post-release is out of proportion for the crime that has been charged and the conviction in this matter. I know we've had this matter before the Court before.
“I just think that it is cruel and unusual punishment, would ask the Court not to impose a lifetime post release, but to impose a shorter post release as the Court saw sufficient.
“We would ask for a 24 month post release, which would be more in line with a Level 5 crime.”
The sentencing judge's response to counsel's request was that “[t]he current law does not allow this Court the discretion to depart on these types of cases from the lifetime post-release requirement. These cases have gone to the Supreme Court. The legislature has imposed this punishment, and this Court must abide by the statute.” The judge made no findings of fact. The record on appeal docket does not reflect any effort by McDaniel to request findings of fact or conclusions of law on this issue. See Supreme Court Rule 165 (2011 Kan. Ct. R. Annot. 246).
The Kansas Supreme Court has repeatedly held that cruel and unusual punishment claims are “inherently factual” and require review of the facts of the crime and the particular characteristics of the defendant. State v. Easterling, 289 Kan. 470, 486, 213 P.3d 418 (2009); State v. Thomas, 288 Kan. 157, 161, 199 P.3d 1265 (2009); State v. Ortega–Cadelan, 287 Kan. 157, 161, 194 P.3d 1195 (2008). These factual elements are necessary for an analysis under Freeman. See Ortega–Cadelan, 287 Kan. at 161.
McDaniel concedes that the district court did not make findings of fact or conclusions of law regarding his constitutional claim and that defense counsel did not request such findings. He argues, however, that the dicta language in State v. Seward, 289 Kan. 715, 217 P.3d 443 (2009), “was not binding, and that Rule 165 speaks only in terms of the district court's duties, not counsel's.” McDaniel requests that this court remand the case for proper factual findings by the district court.
In Seward, the Supreme Court addressed an Eighth Amendment challenge to lifetime postrelease supervision in an appeal from a rape and a sodomy conviction sentenced under Jessica's Law. In Seward, the defendant made it clear in his plea agreement that he was preserving a constitutional challenge to the constitutionality of Jessica's Law. He also filed a motion for downward departure from the guidelines sentence for his convictions, discussing his prior criminal history, his efforts to receive treatment, and his remorse and acceptance of responsibility. The defendant also presented the results of a sex offender evaluation he had undergone and the expert's opinion as to his likelihood of future offenses. Seward, 289 Kan. at 716.
On appeal, the Supreme Court addressed Seward's constitutional claim by noting the issues had been raised in the trial court. However, the Supreme Court expressed concern that there were no findings of fact and conclusions of law on the constitutional issue. The Supreme Court focused on the duty of the district court to make proper findings under Rule 165. However, the Supreme Court also emphasized long-standing precedent that litigants were required to object to decisions that do not comply with Rule 165. “In view of the tension produced by these authorities, the newness of the constitutional issues ..., and ... the efforts by Seward and his counsel to keep the issues alive,” the Supreme Court remanded the case to the district court for additional findings. Seward, 289 Kan. at 721.
In this case, however, there are no facts in the record beyond the bare-bones stipulation setting forth the statutory elements of the charge and the assertion that McDaniel's criminal history score was I. There was no departure motion, no reference to the facts in the motion or hearing, and no effort to seek a decision in compliance with Rule 165. Here, McDaniel has failed to provide an adequate record for a Freeman analysis. As noted by the Supreme Court in Seward,
“We emphasize that we believe this case to be exceptional. In the future, a defendant who wishes to appeal on the basis of a constitutional challenge to a sentencing statute must ensure the findings and conclusions by the district judge are sufficient to support appellate argument, by filing of a motion invoking the judge's duty under Rule 165, if necessary.” (Emphasis added.) 289 Kan. at 721.
The decision in Seward was issued on October 2, 2009, more than 1 year before charges in McDaniel's case were filed. Moreover, McDaniel's motion challenging the constitutionality of the statute was filed more than 18 months after Seward was decided. Under these circumstances, remand is not warranted, and we affirm the district court's imposition of lifetime postrelease supervision.
However, even if we consider the Eighth Amendment issues in light of State v. Mossman, 294 Kan. 901, 281 P.3d 153 (2012), and State v. Cameron, 294 Kan. 884, 281 P.3d 143 (2012), McDaniel's argument is still without merit. When deciding whether a sentence is cruel or unusual under the United States or Kansas Constitution, the district court must make both legal and factual determinations. Mossman, 294 Kan. at 906. Because of the requirement of both factual and legal findings, an appellate court must apply a bifurcated standard of review. First, the court reviews all the evidence, without reweighing the same, to determine if there is sufficient support for the district court's factual determinations. Second, the appellate court reviews the district court's legal conclusions drawn from those facts de novo. Mossman, 294 Kan. at 906.
In Mossman and Cameron, the Kansas Supreme Court discussed and rejected Eighth Amendment challenges to Jessica's Law in cases involving convictions of aggravated indecent liberties and aggravated indecent solicitation, respectively. In doing so, the Court analyzed the issues under both the Freeman standards and the recent United States Supreme Court decision of Graham v. Florida, 560 U.S. ––––, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010).
The holding in Cameron is most analogous to the facts in this case. In Cameron, the defendant pled guilty to three counts of aggravated indecent solicitation of a child in violation of K.S.A. 21–3511(a), a severity level 5 crime. This crime prohibits anyone from “ ‘[e]nticing or soliciting a child under the age of 14 years to commit or to submit to an unlawful sexual act.” ’ Cameron, 294 Kan. at 886; see K.S.A.2011 Supp. 21–5508(b), (c)(2). Here, McDaniel was convicted of sexual exploitation of a child under K.S.A.2010 Supp. 21–3516(a)(2) by possessing a visual depiction of a child under 18 years of age in sexually explicit conduction with the intent to arouse the sexual desires of the offender, child or another person. At the time of McDaniel's offense, sexual exploitation of a child was a severity level 5 person felony. K.S.A.2010 Supp. 21–3516(c).
Solicitation involves directly enticing a child while sexual exploitation is more indirect conduct—possession of depictions created by the defendant or another of a child's sexual conduct. The United States Sentencing Commission recommends the maximum term of supervision for possession of child pornography. See 2012 U.S.S.C. Guidelines Manual § 5D1.2(b)(2) (2012) (Policy Statement). The Mossman case discussed other jurisdictions where lifetime supervision has been considered constitutional when the defendant is convicted of receipt or possession of child pornography. See, e.g ., United States v. Williams, 636 F.3d 1229, 1233–35 (9th Cir.), cert. denied132 S.Ct. 188 (2011); United States v. Moriarty, 429 F.3d 1012, 1025 (11th Cir.2005); People v. Dash, 104 P.3d 286, 293 (Colo.App.2004)(the Colorado General Assembly has determined that sex offenders present a continuing danger to the public; statute providing for lifetime treatment and supervision of sex offenders not unconstitutional); State v. Harkins, 786 N.W.2d 498, 507 (Iowa App.2009) (special life sentence for third-degree sexual abuse conviction not cruel and unusual punishment).
In Cameron and Mossman, the court compared the punishment for aggravated solicitation of a child with the punishments for other crimes in Kansas and then compared the penalties imposed by other states for similar offenses. The court in Cameron specifically rejected the arguments comparing lifetime postrelease supervision to sentences for crimes such as second-degree murder, noting that despite the longer cumulative sentence, lifetime postrelease supervision for a sexually violent offense was not grossly disproportionate. The court noted that lifetime postrelease supervision, although resulting in a lengthy cumulative sentence, “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; see Mossman, 294 Kan. at 911.
Based on Cameron and Mossman, the imposition of lifetime postrelease supervision for convictions for sexual exploitation of a child does not violate the cruel and unusual punishment clauses of either the federal or state constitutions. Consequently, McDaniel's claim fails.
Lifetime Offender Registration
McDaniel also claims that sentencing him to lifetime offender registration is illegal and violates the registration statute because his victim was 15 years old. Under K.S.A.2010 Supp. 22–4902(a)(1), McDaniel contends he should have been required to register for only 10 years. In response, the State contends the registration statute at the time of McDaniel's sentencing required imposition of lifetime postrelease supervision for his conviction.
Interpretation of a statute is a question of law over which the appellate courts have unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).
The charging document alleged that in the “summer of 2010” McDaniel committed sexual exploitation of a child under 18 years of age; the identity of the victim was redacted as confidential. Likewise, the factual basis for his stipulation only indicated that the victim was under 18 years of age. The original three charges involved incidents in August 2010 or the “summer of 2010” and involved a 12–year–old and a 15–year–old.
After July 1, 2010, sexual exploitation of a child was defined as a sexually violent crime under K.S.A.2010 Supp. 22–4902(c)(8). For purposes of the Kansas Offender Registration Act (KORA) any person who committed a sexually violent crime after April 14, 1994, was considered a sex offender and an “offender” under KORA. K.S.A.2010 Supp. 22–4902(a), (b). Under the 2010 version of the statute, a person convicted of a sexually violent crime for the first time was required to register under KORA for 10 years. K.S.A.2010 Supp. 22–4906(a).
However, KORA was amended twice by the 2011 Legislature. In House Bill No. 2339, the KORA amendments essentially incorporated the new statutory provisions from the revised Kansas Criminal Code. L.2011, ch. 30, Sec. 145. Thus, the registration requirement for McDaniel's crime remained 10 years as a first-time offender. K.S.A.2011 Supp. 22–4906a (effective July 1, 2011). The House Substitute for Senate Bill 37, however, made substantive amendments to KORA. See L.2011, ch. 95, Sec. 6 (effective July 1, 2011). These amendments require a defendant convicted of sexual exploitation of a child to register for 25 years from the date of conviction if the victim is between 14 and 18 years of age, K.S.A.2011 Supp. 22–4906(b)(1)(G), and for the defendant's lifetime if the victim was under the age of 14. K.S.A.2011 Supp. 22–4906(d)(7). McDaniel was sentenced on August 1, 2011, after these amendments became effective.
Neither party adequately addresses this issue. McDaniel argues that despite the lack of clarity in the record, the court should find that the age of his victim was over 14 years and, therefore, lifetime registration is unlawful. The factual stipulation only contained the elements of K.S.A.2010 Supp. 21–3516(a)(2)—possessing a visual depiction of a child under 18. His reliance on the terms of K.S.A.2010 Supp. 21–3516(a)(5) and (a)(6) are inapplicable as they require proof of employing, persuading, or otherwise promoting an illicit performance by a minor.
The State only asserts that lifetime registration is lawful under the 2011 amendments to KORA. However, even under the 2011 amendments, lifetime registration is required only if the victim was under the age of 14. K.S.A.2011 Supp. 22–4906(d)(7).
Because the age of the victim is unclear from the record, this court cannot determine whether the registration requirement is consistent with applicable statutes. The registration requirement is vacated, and the case remanded for a factual determination by the court as to the age of the victim in the amended complaint and for a determination of which version of KORA applies in this case.
We affirm the order of the postrelease supervision term imposed by the district court. We vacate the lifetime registration requirement and remand for a factual determination of the age of the victim and the appropriate version of KORA that should be applied.