Opinion
111,008.
11-21-2014
STATE of Kansas, Appellee, v. Christopher SMITH, Appellant.
MEMORANDUM OPINION
PER CURIAM.
Defendant Christopher Smith challenges the constitutionality of the order of lifetime postrelease supervision imposed on him as part of his sentence after he pled no contest to one count of indecent liberties with a child. More specifically, Smith contends lifetime postrelease supervision amounts to cruel and unusual punishment for that offense. We granted Williams' motion for summary disposition without briefing, pursuant to K.S.A.2013 Supp. 21–6820(g) and (h) and Supreme Court Rule 7.041A (2013 Kan. Ct. R. Annot. 63). Because recent decisions of the Kansas Supreme Court foreclose Smith's argument, we affirm his sentence.
In July 2011, Smith pled no contest to and was convicted of one count of indecent liberties with a child. The district court sentenced Smith to 32 months' imprisonment and a postrelease supervision term of 24 months. In August 2013, the State filed a motion to correct an illegal sentence, arguing that, by statute, a conviction of indecent liberties with a child required lifetime postrelease supervision. The district court granted the State's motion and ordered that Smith be subject to lifetime postrelease supervision as a result of his conviction.
Smith argues on appeal that the imposition of lifetime postrelease supervision violates his rights under the Eighth Amendment to the United States Constitution because it constitutes cruel and unusual punishment. In his motion for summary disposition, he asserts without any elaboration that State v. Mossman, 294 Kan. 901, 281 P.3d 153 (2012), controls this issue.
In Mossman, the defendant was charged with one count of aggravated indecent liberties with a child and one count of possession of cocaine. Mossman was sentenced to concurrent presumptive prison terms and lifetime postrelease supervision. On appeal, Mossman argued that imposition of lifetime postrelease supervision was disproportionate to his crimes and therefore violated his rights under § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment. The Kansas Supreme Court rejected this argument and upheld Mossman's sentence. 294 Kan. at 921, 930.
Kansas courts analyze challenges under § 9 of the Kansas Constitution Bill of Rights by utilizing factors announced in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978). State v. Ochs, 297 Kan. 1094, 1106–07, 306 P.3d 294 (2013). Unlike Mossman, Smith does not challenge his sentence under the Kansas Constitution Bill of Rights. An issue not raised on appeal is deemed waived and abandoned. State v. Holman, 295 Kan. 116, 125, 284 P.3d 251 (2012). Therefore, Smith has waived any challenges under the Kansas Constitution Bill of Rights.
Eighth Amendment proportionality challenges to term-of-years sentences fall into one of two general classifications: (1) Arguments that the term of years is grossly disproportionate given all the circumstances in a particular case and (2) cases in which the court implements the proportionality standard by certain categorical restrictions. State v. Ross, 295 Kan. 424, 428, 284 P.3d 309 (2012). It is unclear from Smith's motion for summary disposition which classification his constitutional challenge falls under. But claims brought under the first classification are fact-specific and cannot be raised on appeal without findings of fact and conclusions of law from the district court. State v. Gomez, 290 Kan. 858, 864, 235 P.3d 1203 (2010).
At the hearing on the State's motion to correct an illegal sentence, Smith opposed the motion by arguing that, given the facts of this case, lifetime postrelease supervision was unconstitutional. However, the district court made no findings of fact or conclusions of law related to Smith's constitutional challenge. It granted the State's motion to correct an illegal sentence and imposed lifetime postrelease supervision on Smith without specifically addressing his constitutional argument. A defendant who wishes to lodge a constitutional challenge to a sentencing statute must make sure the district judge makes adequate findings and conclusions, even if it requires filing a motion invoking the judge's duty to do so under Supreme Court Rule 165 (2013 Kan. Ct. R. Annot. 265). State v. Seward, 289 Kan. 715, Syl. ¶ 3, 217 P.3d 443 (2009). Smith's failure to ensure the district court made the necessary findings of fact and conclusions of law precludes this court from considering any challenge under the first classification of Eighth Amendment sentencing challenges. See 289 Kan. at 720–21.
On the other hand, analysis under the second classification involves only questions of law and may be raised for the first time on appeal. This court's review of challenges under the second classification is unlimited. State v. Ruggles, 297 Kan. 675, 679, 304 P.3d 338 (2013). Kansas appellate courts utilize a two-prong test when a defendant raises such a categorical proportionality challenge:
“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.' “ 297 Kan. at 680 (quoting Graham v. Florida, 560 U.S. 48, 61, 130 S.Ct. 2011, 176 L.Ed.2d 825 [2010] ).
However, lengthy analysis under this test is unnecessary. Smith moved for summary disposition of this case and specifically asserted that Mossman controls the issue on appeal. In Mossman, the Kansas Supreme Court held: “Mossman's sentence to lifetime postrelease supervision under K.S.A. 22–3717(d)(l)(G) for his conviction of aggravated indecent liberties with a child is not categorically disproportionate and, therefore, is not cruel and unusual punishment under the Eighth Amendment to the United States Constitution.” 294 Kan. at 930. Although Smith was convicted of indecent liberties with a child rather than aggravated indecent liberties with a child as in Mossman, both offenses are defined by the relevant statute as sexually violent crimes. K.S.A.2010 Supp. 22–3717(d)(2)(B)–(C).
In addition to Mossman, the Kansas Supreme Court has held that lifetime postrelease supervision for other sexually violent crimes is not categorically disproportionate in violation of the Eighth Amendment. See State v. Williams, 298 Kan. 1075, 1089–90, 319 P.3d 528 (2014) (sexual exploitation of a child); State v. Cameron, 294 Kan. 884, 281 P.3d 143 (2012) (aggravated indecent solicitation of a child). This court is duty bound to follow Kansas Supreme Court precedent absent some indication the court is departing from its previous position. State v. Acevedo, 49 Kan.App.2d 655, 670, 315 P.3d 261 (2013). Because Smith concedes Mossman controls here and, like Mossman, Smith was convicted of a sexually violent crime, we have no reason to depart from the Kansas Supreme Court's rulings upholding the constitutionality of lifetime postrelease supervision for such crimes. Consequently, Smith's sentence to lifetime postrelease supervision for the offense of indecent liberties with a child is not categorically disproportionate and, therefore, is not cruel and unusual punishment under the Eighth Amendment.
Affirmed.