Opinion
No. 104,308.
2013-02-1
STATE of Kansas, Appellee, v. Trent HOSTETTER, Appellant.
Appeal from Saline District Court; Daniel L. Hebert, 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; Daniel L. Hebert, 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 McANANY, P.J., BUSER and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
In this appeal, Trent Hostetter contends that the imposition of lifetime postrelease supervision following his conviction of aggravated indecent liberties with a child 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.
Hostetter had originally been charged with rape and aggravated indecent liberties with a child. Pursuant to a plea agreement, the State dismissed the rape charge and agreed to recommend probation if Hostetter successfully completed sex offender treatment and drug and alcohol treatment programs. In return, Hostetter pled guilty to aggravated indecent liberties with a child.
The charges arose out of an incident following a party that involved a 14–year–old girl who was the stepsister of a former girlfriend of Hostetter, who was age 19 at the time. The girl was extremely intoxicated. Hostetter took her into the bathroom where they engaged in sexual intercourse. The girl later reported that she had been in and out of consciousness during these events due to the alcohol that she had consumed. When they were done, Hostetter asked the girl not to tell anyone, stating that he would get in trouble if she told. When later questioned by police, Hostetter admitted using his fingers to digitally penetrate the girl's vagina “after she asked him to.”
Dr. Jarrod Steffan, a licensed psychologist, conducted a presentencing psychological evaluation of Hostetter. Dr. Steffan found that Hostetter had a low to moderate risk for sexual recidivism. He reported that Hostetter “conveyed no deviant or paraphilic sexual interests or activities.” He determined that Hostetter suffered from Attention–Deficit/Hyperactivity Disorder, had previously abused alcohol, and has borderline intellectual functioning. But with accommodations for these issues, Dr. Steffan concluded:
“Mr. Hostetter is viewed as an appropriate candidate for these treatment services, is amenable to treatment, and has a favorable prognosis for improvement. These conclusions are further supported by his lack of sexual or violent criminal history, by his favorable support system, and by his lack of personality disorder. Additionally, results from this evaluation indicate that Mr. Hostetter is interested in and motivated to participate in treatment services.”
Before sentencing, Hostetter challenged the statutory provision for mandatory lifetime postrelease supervision. He argued that this mandate, which applies to convictions for aggravated indecent liberties under K.S.A.2008 Supp. 22–3717(d)(1)(G), constitutes cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights. Hostetter asserted that the lifetime postrelease supervision required by K.S.A.2008 Supp. 22–3717(d)(1)(G) “is arbitrary, excessive and disproportionate because it is inflicted the same on Level 7 to Level 1 sex offenders and regardless of their criminal justice history.” Hostetter further argued that imposition of lifetime postrelease supervision is grossly disproportionate to the seriousness of the crime, which carried a maximum presumptive prison term of 71 months. He noted that he had no prior record for crimes of violence. In an apparent effort to shift some of the blame to the victim, he noted the arrest affidavit's reference to the “ ‘out of control’ victim behavior at the time of the incident.”
In support of his position, Hostetter provided the court with examples of the presumptive postrelease supervision periods for what he claimed to be more serious offenses, all of which had shorter periods of postrelease supervision. Hostetter also cited comparable laws in other jurisdictions that do not have lifetime terms of postrelease supervision.
The district court recognized the three-part test established in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), that applies to Hostetter's constitutional challenge but rejected Hostetter's arguments. The court granted Hostetter's motion for a downward dispositional departure and placed Hostetter on probation, with an underlying sentence of 66 months' imprisonment, followed by the lifetime postrelease supervision term required by K.S.A.2008 Supp. 22–3717(d)(1)(G).
Hostetter now appeals, contending the district court erred in not concluding that his sentence violates the constitutional prohibition against cruel and unusual punishment under the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights.
A statute is presumed to be 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 duty to do so. State v. Laturner, 289 Kan. 727, 735, 218 P.3d 23 (2009).
When determining whether a sentence is cruel or unusual punishment, a district court must make both legal and factual determinations. On appeal, we review all of the evidence, without reweighing it, to determine whether the evidence is sufficient to support the district court's factual findings. We review de novo the legal conclusions that the district court drew from those facts. State v. Mossman, 294 Kan. 901, Syl. ¶ 1, 281 P.3d 153 (2012).
K.S.A.2008 Supp. 22–3717(d)(1)(G) provides that an offender convicted of a sexually violent crime shall be released to a mandatory period of postrelease supervision for the duration of the person's life. Included in the definition of sexually violent crimes is the crime of aggravated indecent liberties with a child, Hostetter's crime of conviction in this case. See K.S.A.2008 Supp. 22–3717(d)(2)(C); K.S.A. 21–3504(a)(1).
K.S.A.2008 Supp. 75–5217(c) provides that after conviction of a new felony, “upon revocation, 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.” Thus, the statutory requirement of lifetime postrelease supervision exposes Hostetter to imprisonment for life without parole if he is later convicted of anew felony. See K.S.A.2008 Supp. 22–3717(d)(1)(G).
Mandatory lifetime postrelease supervision includes a general requirement that the person cannot commit a new criminal offense and may also include several other specific conditions, including payment of costs and restitution; completion of educational requirements; performing community service; reporting to a supervising officer, and other special conditions allowed by administrative regulations and orders. K.S.A. 21–4703(p); K.S.A.2008 Supp. 22–3717(m); Mossman, 294 Kan. at 904.
Hostetter initially presented two challenges to the constitutionality of his sentence: a categorical proportionality challenge and a case-specific proportionality challenge. After the parties filed their briefs in this case, the Kansas Supreme Court's decisions in Mossman and State v. Cameron, 294 Kan. 884, 281 P.3d 143 (2012), were released. Our Supreme Court's holding in Mossman—and its consistent holding in the companion case Cameron—dispose of Hostetter's categorical proportionality challenge to the imposition of mandatory lifetime postrelease supervision.
In both Mossman and Cameron, the defendants challenged the constitutionality of the statute mandating the imposition of lifetime postrelease supervision following their convictions of sexually violent crimes. The Kansas Supreme Court rejected Mossman's and Cameron's arguments and held their sentences were not disproportionate to the seriousness of their crimes; were not grossly disproportionate to the sentences imposed for other crimes in Kansas or similar crimes in other states; and, therefore, were not categorically unconstitutional. Mossman, 294 Kan. at 903;Cameron, 294 Kan. at 885.
In August 2012, we issued an order requiring Hostetter to show cause as to why his appeal should not be summarily affirmed under Supreme Court Rule 7.041 (2011 Kan. Ct. R. Annot. 59) in light of the Mossman and Cameron decisions. In response, Hostetter conceded that these cases “may be dispositive” of his categorical challenge (the second and third elements of the Freeman tests), but he argued that he raised a “case-specific” challenge which required the district court to make individualized findings of fact about the offender and the offense under the first Freeman factor. Thus, we retained the appeal to address Hostetter's case-specific challenge under the first Freeman factor.
In Freeman, our Supreme Court stated: “Punishment may be constitutionally impermissible, although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” 223 Kan. at 367. The court set out three factors to be used in analyzing cruel or unusual punishment claims:
“(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.
See State v. Woodward, 294 Kan. 717, 720–21, 280 P.3d 203 (2012).
The first factor is case specific and inherently factual. The facts relating to this first factor and any conclusions derived from those facts must be determined by the district court, not an appellate court. Woodward, 294 Kan. at 720. Here, the district court did not make findings of fact and conclusions of law regarding this fact-specific first Freeman factor.
The first Freeman factor requires us to consider the nature of the offense and the character of the offender, with particular regard to the degree of danger present to society. In doing so, we should consider the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the proscribed punishment. 223 Kan. at 367. In addition:
“This analysis may consider the 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 of the offender, and the offender's propensity for violence.” State v. Ross, 295 Kan. 424, 429, 284 P.3d 309 (2012).
But the district court made no findings of fact under the first Freeman factor other than to state that the relevant factors were already taken into account in the plea agreement Hostetter reached with the State. At sentencing the court had before it the psychological evaluation of Hostetter, but the court failed to make findings regarding its significance.
In State v. Seward, 289 Kan. 715, 718–21, 217 P.3d 443 (2009), our 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. The court recognized that it is not the appellate court's role to make factual findings. Rather, the appellate courts review findings made by the district courts. 289 Kan. at 720–21. In Seward, the district court did not make findings relating to the Freeman factors. Our Supreme Court remanded to district court for such findings:
“In view of the tension produced by these authorities, the newness of the constitutional issues raised by Jessica's Law, and our recognition that the efforts made by Seward and his counsel to keep the issues alive beyond sentencing ..., we are willing to remand this case to the district court for entry of sufficient factual findings and conclusions of law. On remand, the district judge shall also be empowered to decide, in her discretion, whether she requires any further hearing, evidentiary or otherwise, to discharge her Rule 165 duty.
“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.
See Supreme Court Rule 165 (2011 Kan. Ct. R. Annot. 246).
Seward makes clear that a defendant wishing to make a constitutional challenge must ensure adequate findings of facts and conclusions of law in the district court to support his or her argument. In State v. Berriozabal, 291 Kan. 568, 592, 243 P.3d 352 (2010), the Supreme Court recognized that the journal entry was filed “before we made it clear [in Seward ] that a defendant would have the duty to ensure adequate findings of fact.” Unlike in Berriozabal, Hostetter was sentenced in February 2010, after Seward was filed on October 2, 2009. Hostetter could have requested that the district court make the appropriate findings and conclusions required by Supreme Court Rule 165 before pressing forward with this appeal. It was incumbent on Hostetter to designate in the record facts supporting his claim that the district court erred in concluding that his sentence for lifetime postrelease supervision was unconstitutional. Having failed to do so, Hostetter's constitutional challenge fails for not being properly preserved for appeal, and we affirm the district court's imposition of lifetime postrelease supervision.
Affirmed.