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State v. Stegnik

Court of Appeals of Kansas.
Mar 22, 2013
297 P.3d 311 (Kan. Ct. App. 2013)

Opinion

No. 104,072.

2013-03-22

STATE of Kansas, Appellee, v. Cory A. STEGNIK, Appellant.

Appeal from Sedgwick District Court; John J. Kisner, Jr., Clark V. Owens II, and Warren M. Wilbert, judges. Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.


Appeal from Sedgwick District Court; John J. Kisner, Jr., Clark V. Owens II, and Warren M. Wilbert, judges.
Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., BUSER and STANDRIDGE, JJ.

MEMORANDUM OPINION


PER CURIAM.

Following a plea agreement, Cory Stegnik pled guilty to three sex offenses. Prior to sentencing, however, Stegnik filed a pro se motion to dismiss his trial counsel and withdraw his pleas. On appeal, Stegnik contends the district court abused its discretion by failing to appoint conflict-free counsel and denying his motion to withdraw his guilty pleas. He also argues that his lifetime postrelease supervision term constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights. Upon our review of Stegnik's arguments and the record on appeal, we conclude the district court did not err and, therefore, affirm the convictions and sentences imposed by the district court.

Factual and Procedural Background

On February 14, 2009, K.G.A., a 14–year–old girl and K.D.F., a 13–year–old girl, went to the Stegnik's home to “hang out” with Stegnik, who was 18 years old, and his 19–year–old friend, Alex Jacobs. Stegnik provided several alcoholic beverages to both girls and, as a result, they became very intoxicated. According to K.D.F., Stegnik and Jacobs then sexually assaulted them. K.D.F. claimed she was “basically too intoxicated to react to the severity of the situation,” and she passed out while the boys were taking advantage of her and K.G.A. K.D.F. also indicated that K.G.A. “passed out” shortly after consuming the alcoholic beverages.

Jacobs and Stegnik were interviewed by the police. Jacobs advised that prior to the party, a friend of Stegnik's bought them $70 worth of “booze” because Jacobs and Stegnik planned to “get the girls drunk and have a four way.” Jacobs confirmed that the girls became “really drunk.” He recalled that K.G.A. appeared to have “ ‘pure alcohol poisoning’ “ because “ ‘she couldn't walk every time she tried to stand up,’ “ and when she “tried to open her eyes you couldn't see her pupils.” For his part, Stegnik was asked by the police if he understood why he was brought to the police station. Stegnik responded, ‘ “I believe so, I am being charged with statutory rape.’ “ Stegnik also stated that he did not know the girls' ages prior to the party, but after “they got drunk,” the girls told him “they were fourteen.”

On February 19, 2009, the State charged Stegnik with one count of rape of a child under age 14, one count of aggravated indecent liberties with a child who is 14 or more years of age but less than 16 years of age, and two counts of aggravated criminal sodomy.

On January 8, 2010, Stegnik pled guilty, pursuant to plea negotiations, to one count of aggravated indecent solicitation of a child under age 14, in violation of K.S.A. 21–3511(a), one count of aggravated indecent liberties with a child who is 14 or more years of age but less than 16 years of age, in violation of K.S.A. 21–3504(a)(1), and one count of criminal sodomy of a child who is 14 or more years of age but less than 16 years of age, in violation of K.S.A. 21–3505(a)(2). After confirming that Stegnik understood his rights, the charges against him, and the consequences of his pleas, the district court accepted Stegnik's pleas as “knowingly and voluntarily entered.”

On February 2, 2010, prior to sentencing, Stegnik filed a pro se motion to dismiss his counsel and withdraw his guilty pleas. Stegnik alleged that his counsel, Timothy Frieden, was ineffective because Frieden coerced him to plead guilty “by way of threats and promises.” Accordning to Stegnik, Frieden discussed his case with his parents, without his permission, in an effort “to pressure [him] into taking a plea,” and despite his wishes, Frieden failed to prepare a defense and move forward with trial. Stegnik further alleged that Frieden failed to properly advise him of the ramifications of his pleas, i.e., his convictions would, for the rest of his life, adversely affect his employability “in a long list of occupations”; and should he have children in the future, he would not be allowed to pick them up from school.

On February 26, 2010, the district court held a hearing to consider Stegnik's motion to dismiss Frieden. At the hearing, Stegnik clarified the arguments he raised in his motion. First, Stegnik explained that Frieden engaged in “constant coercion” by repeatedly emphasizing his potential sentence: “[Frieden] came to me ... saying if you don't take this plea you won't be on the grid at all, basically, and giving me the emotional fear of life in prison.” Second, Stegnik indicated that although he gave Frieden permission to speak with his parents, he thought Frieden's contacts with his family would be limited to specific issues, and he did not expect Frieden to discuss sentencing matters. According to Stegnik, Frieden's discussions with his family extended beyond the topics he deemed acceptable because his father, for instance, would visit him at the jail with “tears in his eyes, saying, if you don't take this plea, I'm going to spend the rest of my life seeing you in prison and I don't want to see that.” Stegnik claimed this caused him to feel “emotionally pressured” into pleading guilty because he did not “want [his] parents feeling, saying, why didn't you take that plea, ... [he] just didn't want to hurt [them].” Finally, Stegnik alleged that he and Frieden had a “conflict of interest” because Frieden thought he was guilty.

At the conclusion of the hearing, District Judge John J. Kisner, Jr., denied Stegnik's request for new trial counsel because Stegnik failed to show “justifiable dissatisfaction” with Frieden necessitating the appointment of substitute counsel. Judge Kisner explained:

“I don't see any basis, I'm not—I'll be honest with you, I don't see why we're here. There is no basis for me to find that there has been any irreconcilable conflict, that there has been anything that has occurred here that would even come close to a basis to change counsel. Even if I take what [Stegnik] said as true, I don't think there is a basis for justifiable dissatisfaction .”

Four days later, on March 2, 2010, the district court conducted a separate hearing on Stegnik's motion to withdraw his pleas. At the hearing, Stegnik told District Judge Clark V. Owens II—the judge who accepted Stegnik's pleas—he wished to withdraw his pleas and proceed to trial, Stegnik argued that his pleas were a byproduct of emotional distress and he had “more of a fighting chance” at countering the State's evidence and obtaining an acquittal. Stegnik explained that he was “constantly being told to take the plea,” and due to Frieden's actions, his parents were distraught. Although Stegnik acknowledged that when he entered his pleas he told Judge Owens that he understood the plea agreement, the potential sentences he faced, and the rights he waived by pleading guilty, Stegnik said he did not actually understand any of this information. According to Stegnick, this was because his father had a “panic attack” in the courtroom moments before he entered his pleas and he was concerned about his parents' welfare. Judge Owens denied Stegnik's motion, finding that he had failed to show good cause to set aside the pleas.

Three days later, Stegnik filed a motion to dismiss all of the charges against him. He asserted that the severe and unconstitutional nature of the potential sentences associated with the original charges against him (life imprisonment with a minimum sentence of 25 years) “influenced [his] ability to make any reasoned decision on how to proceed regarding plea or trial.” Stegnik also raised the issue that his sentences were unconstitutional because the lifetime postrelease supervision term, mandated by K.S.A.2008 Supp. 22–3717(d)(1)(G), violated the cruel and unusual punishment prohibitions in the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights.

Immediately prior to sentencing on March 9, 2010, the district court held a hearing on Stegnik's motion to dismiss. The district court denied Stegnik's motion, stating that the legislature had deemed it appropriate to require sex offenders to serve lifetime postrelease supervision terms due to the nature of the offenses and public safety concerns.

At sentencing, the district court denied Stegnik's motion for a durational departure, and sentenced him to a controlling term of 61 months' imprisonment with lifetime postrelease supervision. Stegnik filed a timely appeal.

Denial of Motion to Appoint New Defense Counsel for Plea Withdrawal Hearing

For his first issue on appeal, Stegnick contends “[b]y not appointing Mr. Stegnik conflict-free counsel at a hearing where the State is represented, the district court failed to hold a meaningful hearing on Mr. Stegnik's motion” to withdraw pleas.

Appellate courts review this issue for an abuse of discretion. State v. Hulett, 293 Kan. 312, 318, 263 P.3d 153 (2011). A judicial action constitutes an abuse of discretion:

“if [the] judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
It is Stegnik's burden to prove an abuse of discretion. See Hulett, 293 Kan. at 319.

District courts are not required to grant a defendant's motion for new trial counsel unless the defendant shows “ ‘justifiable dissatisfaction’ “ with their appointed counsel. State v. Bogguess, 293 Kan. 743, 753, 268 P.3d 481 (2012). When the State is represented at a plea withdrawal hearing, the defendant has a constitutional right under the Sixth Amendment to the United States Constitution to be represented by “conflict-free” counsel. Hulett, 293 Kan. at 319; see State v. Taylor, 266 Kan. 967, 975, 975 P.2d 1196 (1999). Accordingly, “[w]here a [district] court becomes aware of a possible conflict of interest between an attorney and a defendant charged with a felony, the court has a duty to inquire further. [Citation omitted.]” Taylor, 266 Kan. at 979. A district court abuses its discretion by failing to make such an inquiry because “ ‘[i]t is the task of the district judge to insure that a defendant's Sixth Amendment right to counsel is honored.’ [Citation omitted.]” 266 Kan. at 975, 978.

To be clear, Stegnik does not challenge the propriety of the district court's denial of his motion to dismiss Frieden, nor does he question Judge Kisner's finding that he failed to establish justifiable dissatisfaction with Frieden's performance. Instead, Stegnik argues that he did not receive a “meaningful hearing” on his motion to withdraw his pleas because Judge Owens deprived him of his Sixth Amendment right to counsel by failing to disqualify Frieden, due to a conflict of interest, at the plea withdrawal hearing.

At the outset, Stegnik does not provide a factual basis to show that Judge Owens had any reason to be aware of a potential conflict of interest between Stegnik and Frieden. As the State points out, Stegnik's analysis of this issue merely consists of “a sparse factual statement and a conclusory assertion that it was incumbent upon the district court to appoint conflict-free counsel.” This absence of argument and lack of a factual basis is particularly troublesome because the record shows that 4 days prior to the motion to withdraw plea hearing, Judge Kisner denied Stegnik's request based on Stegnik's failure to show justifiable dissatisfaction with Frieden's performance.

We conclude that Stegnik has waived and abandoned this issue. See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011) (A point raised incidentally in a brief and not argued therein is deemed waived and abandoned.); State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010) (Failure to support an argument with pertinent authority is akin to failing to brief the issue.).

Assuming Stegnik had properly briefed this issue, his claim is without merit because he failed to show justifiable dissatisfaction with Frieden during the hearing on his motion. According to our Supreme Court:

“ ‘Justifiable dissatisfaction includes a showing of a conflict of interest, an irreconcilable conflict, or a complete breakdown in communications between counsel and the defendant. [Citation omitted .] But ultimately, ‘ “[a]s long as the trial court has a reasonable basis for believing the attorney-client relation has not deteriorated to a point where appointed counsel can no longer give effective aid in the fair presentation of a defense, the court is justified in refusing to appoint new counsel.” “ [Citations omitted.]” Bogguess, 293 Kan. at 753–54.

At the hearing, Judge Kisner asked Stegnik, “Have you met with Mr. Frieden enough about your case and talked to him about your case and so forth, has that been an issue?” Stegnik responded, “Not that I know of.” This response refutes any claim that there was a ‘ “complete breakdown in communications.’ “ See Bogguess, 293 Kan. at 753.

Instead, Stegnik's request for new counsel focused on an “ ‘irreconcilable conflict’ “ or ‘ “a conflict of interest.’ “ See 293 Kan. at 753. Specifically, Stegnik alleged: (1) Frieden coerced him to plead guilty by emphasizing his potential sentence, (2) Frieden discussed his case with his parents in an effort “to pressure [him] into taking a plea,” and (3) he and Frieden had a “conflict of interest” because Frieden thought he was guilty. As Judge Kisner concluded, assuming the truth of Stegnik's factual claims, none of these allegations demonstrates that Stegnik and Frieden's relationship had deteriorated to the point where Frieden could no longer effectively represent Stegnik. See Bogguess, 293 Kan. at 753–54.

First, with regard to Stegnik's allegation of improper plea inducement, Stegnik complained that his dissatisfaction resulted from Frieden's statements regarding lengthy potential prison sentences if he was convicted as charged. Yet, upon Judge Kisner's inquiry, Stegnik admitted the lengthy sentences mentioned by Frieden were accurate. We discern no impropriety or irreconcilable conflict. When advising a client regarding whether to enter a plea, “ ‘defense counsel is obligated to fully and frankly advise his client as to the range of permissible penalties and the possible choices open to him.’ [Citations omitted.]” State v. Murray, 22 Kan.App.2d 340, 346, 916 P.2d 712 (1996).

Similarly, as to the allegation of unauthorized conversations with family, Stegnik acknowledged that he gave Frieden permission to speak with his parents. When Judge Kisner asked him if he ever specifically told Frieden to stop talking to his parents, Stegnik stated, “No, Your Honor, I did not.” And when Judge Kisner asked if Stegnik ever restricted Frieden's ability to speak with his parents, Stegnik again responded in the negative.

We are persuaded that Stegnik caused or substantially contributed to any problems of which he now complains because he gave Frieden permission to speak with his parents and failed to vocalize his displeasure. As a general rule, situations caused by the actions or inactions of the defendant may not form the basis for a substitution of counsel. See State v. Ferguson, 254 Kan. 62, Syl. ¶ 3, 864 P.2d 693 (1993).

Finally, Stegnik's assertion of a “conflict of interest” based upon Frieden's supposed belief in his guilt does not constitute justifiable dissatisfaction. Frieden could not recall making such a statement, and he explained that if he did, it was made in reference to the evidence against Stegnik, which included an incriminating statement Stegnik made to police and testimony from the victims and other witnesses. There is no indication that Frieden refused to present evidence or otherwise failed to advocate on Stegnik's behalf. In fact, not only did Frieden negotiate an extremely favorable plea agreement, there was evidence that he was adequately preparing for trial by filing several pretrial motions on Stegnik's behalf, including a motion to suppress incriminating statements and a motion for admission of the complaining victim's prior sexual conduct. As a result, we conclude that Frieden's belief in the guilt or innocence of Stegnik did not have any effect on the attorney-client relationship or the adequacy of counsel's representation.

Accordingly, because Judge Kisner made an appropriate inquiry and determination that the attorney-client relationship had not deteriorated to the point where Frieden could no longer effectively represent Stegnik, and there was no reason for Judge Owens to make an additional inquiry 4 days after Judge Kisner made his ruling, we find no abuse of judicial discretion by either district court judge.

Denial of Motion to Withdraw Pleas

For his second issue on appeal, Stegnik contends that Judge Owens abused his discretion when he denied the presentencing motion to withdraw pleas because the evidence Stegnick presented met the “good cause” standard.

Prior to sentencing, a district court may, in the exercise of sound judicial discretion, allow a defendant to withdraw a plea of guilty or nolo contendere “for good cause shown.” K.S.A, 22–3210(d). When determining whether the defendant has shown good cause, Kansas courts generally consider three factors, commonly referred to as the “ ‘Edgar factors' “—after State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006): “(1) whether the defendant was represented by competent counsel, (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of, and (3) whether the plea was fairly and understandingly made. [Citations omitted.]” State v. Aguilar, 290 Kan. 506, 511, 231 P.3d 563 (2010). These “ ‘factors need not apply in a defendant's favor in every case, and other factors may be duly considered in the district judge's discretionary decision on the existence or nonexistence of good cause.’ [Citation omitted.]” State v. Macias–Medina, 293 Kan. 833, 837, 268 P.3d 1201 (2012).

Appellate courts will not disturb a ruling on a presentencing motion to withdraw plea unless the defendant sufficiently demonstrates that the district court abused its sound discretion. Macias–Medina, 293 Kan. at 836.

Relying solely upon the first Edgar factor, Stegnik argues that good cause existed to withdraw his pleas because the following “accusations” established Frieden's ineffectiveness:

“—Counsel coerced him into taking a plea, through threats and promises.

“—Counsel did not advise him that his conviction would adversely affect his ability to get employment.

“—Counsel did not advise him that he would not be able to pick his children up from school because of his conviction.

“-_Counsel did not explain the long list of ramifications that the conviction would have.

“—Counsel spoke with his parents without his permission.

“—Counsel used his parents to coerce him into a plea.

“—Counsel did not prepare a defense.”

Once again, as a preliminary matter, Stegnik has failed to properly brief this issue because his argument is purely conclusory in nature, and he does not support his contention that Judge Owens abused his discretion with a factual basis, substantive analysis, or pertinent legal authority. These failures and omissions persuade us that Stegnik has waived or abandoned this issue on appeal. See McCaslin, 291 Kan. at 709;Berriozahal, 291 Kan. at 594.

Assuming Stegnik had properly briefed this issue, however, his claim of error is without merit. First, although Stegnik challenged Frieden's competency in his motion to withdraw his pleas on a variety of grounds, Stegnik only addressed one of these allegations at the plea withdrawal hearing. Specifically, Stegnik asserted that he wanted to withdraw his pleas because, due to his parents' emotional state following Frieden's discussions with them, he felt pressured to plead guilty without a full understanding of the consequences. Judge Owens summarized Stegnik's argument:

“So the bottom line is that you think that you've rethought this and decided that the pressure of your family talking to you, and the thought of going to prison for such a long period of time is the reason you decided, after reflection, that you would rather just go to trial rather than just take the plea?”
Stegnik replied, “Yes, sir.”

Several Kansas cases have found that pressure from one's family or attorney is not a valid basis for withdrawal of an otherwise voluntary plea of guilty. See, e.g., State v. Denmark–Wagner, 292 Kan. 870, 877, 258 P.3d 960 (2011); Wippel v. State, 203 Kan. 207, 209, 453 P.2d 43 (1969); Williams v. State, 197 Kan. 708, 710–11, 421 P.2d 194 (1966); State v. Bartlow, No. 96,933, 2008 WL 2051672, at *3 (Kan.App.2008) (unpublished opinion), rev. denied 286 Kan. 1180 (2008). For example, in Denmark–Wagner, the defendant contended that his mother and sister coerced him into pleading guilty because they “wanted to be able to see him sooner and hug him during visitation.” Denmark–Wagner, 292 Kan. at 877. The Kansas Supreme Court held that absent any evidence that the defendant's plea was made unwillingly or without an understanding of the consequences, family pressure does not rise to the level of good cause to vitiate an otherwise valid plea. 292 Kan. at 876–77.

In the district court, Stegnik argued that the pressure from his family distracted him during the plea hearing when Judge Owens was questioning him and informing him of his rights. The following colloquy between Judge Owens and Stegnik is instructive:

“[STEGNIK]: When you were reading them off, I was more [focused] on my parents in the back of the courtroom, wondering if they were okay, and I was distressed.

“THE COURT: You didn't have that appearance. I didn't see you looking over there. You answered all my questions.

“[STEGNIK]: Right before you asked me, I remember looking over my left shoulder at my parents.”

Shortly thereafter, Judge Owens reminded Stegnik that prior to accepting his pleas, he verified that Stegnik understood the plea agreement, the charges against him, the rights he was waiving, and the consequences of his pleas. In response, Stegnik acknowledged that he told Judge Owens he understood that information.

Judge Owens found that any family pressure Stegnik received did not affect his ability to knowingly and voluntarily understand the ramifications of his pleas. Judge Owens explained that Stegnik's demeanor at the plea hearing convinced him that he knowingly and voluntarily entered his pleas:

“You came off as a person—in fact, you even asked questions during the process like you wanted to know some answers to the consequences on this, which makes it look even more like a knowingly entered plea, not a person just sitting there and saying yes and no.

“It's easier to argue, well, I didn't fully understand it. But you understood it to the point of even asking questions about the plea bargain and how this was going to impact your life. And you still said yes, that this is what you wanted to do. So this isn't something you can say, yeah, I like the deal but I'm going to change my mind about it, that isn't sufficient as being grounds to set this aside.”

Our review of the record of the plea hearing provides substantial competent evidence in support of Judge Owens' legal conclusion. Moreover, Judge Owens presided over the plea hearing and the withdrawal hearing, and, as a result, he was in the best position to determine whether Stegnik appeared distracted and/or distressed at the plea hearing. As the presiding judge at both hearings, Judge Owens had the ability to observe Stegnik and to determine the credibility of his claims at the withdrawal hearing. It is not proper for this court to question the trier of fact's credibility determinations on appeal. See State v. Johnson, 289 Kan. 870, 888, 218 P.3d 46 (2009); see also Macias–Medina, 293 Kan. at 839 (Kansas Supreme Court noted that when the same judge presides over the plea hearing and the withdrawal hearing, that judge is in “the best position to resolve conflicts in the testimony and make the determination ... [whether the] pleas were knowingly and intelligently made ...”).

Finally, Judge Owens specifically found that Frieden's advocacy was not lackluster, as his decision to urge Stegnik to accept an extremely favorable plea agreement was reasonable and appropriate under the circumstances of this case. As the Kansas Supreme Court stated in Macias–Medina: “A defendant should know th[e] reality [of his or her situation] when making the decision whether to accept a plea agreement with a recommended 5–year prison term or go to jury trial with the risk of a minimum 25–year prison term.” 293 Kan. at 838.

In conclusion, substantial competent evidence supports Judge Owens' legal conclusion that Stegnik had failed to show good cause to withdraw his pleas. We find no abuse of the district court's discretion in this regard.

Constitutionality of Lifetime Postrelease Supervision

For his final issue on appeal, Stegnik contends that his lifetime postrelease supervision term constitutes cruel and/or unusual punishment under the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights because it is disproportionate to the seriousness of his offenses and the punishments imposed for more heinous crimes.

Defendants convicted of “a sexually violent crime,” committed on or after July 1, 2006, who are not sentenced to lifetime imprisonment under K.S.A. 21–4643, “shall be released [from prison] to a mandatory period of postrelease supervision for the duration of the person's natural life.” K.S.A.2008 Supp. 22–3717(d)(1)(G). Stegnik's crimes of conviction—aggravated indecent solicitation of a child under age 14, aggravated indecent liberties with a child who is 14 or more years of age but less than 16 years of age, and criminal sodomy of a child who is 14 or more years of age but less than 16 years of age—are all included within the definition of sexually violent crimes. See K.S.A.2008 Supp. 22–3717(d)(2)(C), (D), and (F).

Mandatory lifetime postrelease supervision is part of a defendant's sentence and, during the postrelease term, the defendant may not commit a new criminal offense and may be required to abide by “several other specific ‘conditions targeted toward facilitating rehabilitation, restitution, and safe reintegration into society.’ [Citations omitted.]” State v. Mossman, 294 Kan. 901, 904, 281 P.3d 153 (2012). Defendants who violate the terms of their postrelease supervision by committing a new criminal offense may be required to serve a prison term which shall not exceed the remaining balance of the postrelease supervision period. K.S.A.2008 Supp. 75–5217(c); Mossman, 294 Kan. at 904.

Stegnik challenges the constitutionality of K.S.A.2008 Supp. 22–3717(d)(1)(G), under the Eighth Amendment and § 9 of the Kansas Constitution Bill of Rights, because due to the liberty restrictions that accompany lifetime postrelease supervision and the potential for life in prison, the duration of his sentence is “excessive [and] shocking to the consci[ence].” Our Supreme Court has addressed this very issue in several recent cases, and in each instance, the court separately dealt with the federal and state constitutional claims. See State v. Ross, 295 Kan. 424, Syl., 284 P.3d 309 (2012); Mossman, 294 Kan. at 905–30;State v. Cameron, 294 Kan. 884, 888–98, 281 P.3d 143 (2012). We will follow our Supreme Court's analytical framework by separately considering the constitutional claims. § 9 of the Kansas Constitution Bill of Rights

When deciding whether a sentence is cruel and/or unusual under § 9 of the Kansas Constitution Bill of Rights, a district court must make both legal and factual determinations. Mossman, 294 Kan. at 906. As result, while a constitutional challenge to a statute is ordinarily a question of law subject to unlimited appellate review, appellate courts apply a bifurcated standard when reviewing decisions involving § 9 of the Kansas Constitution Bill of Rights. 294 Kan. at 906. Under this standard, “[a]ll of the evidence is reviewed, but not reweighed, to determine if there is sufficient support for the district court's factual findings, and the district court's legal conclusions drawn from those facts are reviewed de novo.” 294 Kan. 901, Syl. ¶ 1.

The separation of powers doctrine requires both a district court making the initial decision regarding the constitutionality of a statute and an appellate court conducting a review of that determination to presume the statute is constitutional. 294 Kan. at 906. Consequently, “if there is any reasonable way to construe a statute as constitutional, courts have the duty to do so by resolving all doubts in favor of constitutionality.” 294 Kan. 901, Syl. ¶ 2.

“ ‘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.’ [Citation omitted.]” Mossman, 294 Kan. at 908. To “aid in administering this principle,” the Kansas Supreme Court established the following three-part test-originating from State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978)-which governs the analysis of cruel or unusual punishment claims-involving the length of the sentence rather than the method of punishment-under § 9 of the Kansas Constitution Bill of Rights:

“ ‘(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.’ [Citation omitted.]” Mossman, 294 Kan. at 908.

Preliminarily, as the State points out, the factual record before us is insufficient to address Stegnik's constitutional challenge because the district court did not make any findings of fact or conclusions of law with respect to the Freeman factors. Instead, the district court premised its ruling on the legislature's determination that “public safety and community interest weigh heavily in keeping track of where these individuals reside once they are released from incarceration.”

Without adequate factual findings, this issue is not “ ‘in a posture to be effectively decided’ “ by this court. State v. Seward, 289 Kan. 715, 720, 217 P.3d 443 (2009). Although the second and third factors depend solely upon legal determinations, the first Freeman factor is “ ‘inherently factual, requiring examination of the facts of the crime and the particular characteristics of the defendant.’ [Citation omitted.]” 289 Kan. at 719. While “ ‘one consideration may weigh so heavily that it directs the final conclusion,’ “ no one factor controls and courts should give due consideration “ ‘to each prong of the test.’ [Citation omitted.]” Mossman, 294 Kan. at 908. As a result, where, as in the present case, “the focus of an argument is proportionality, ‘the factual aspects ... are a necessary part of the overall analysis.’ [Citations omitted.]” 294 Kan. at 908.

Our Supreme Court has consistently declined to address a defendant's argument for cruel and unusual punishment when the defendant has failed to sufficiently raise the constitutional issue and develop the record below. See, e.g., State v. Roberts, 293 Kan. 1093, 1096–97, 272 P.3d 24 (2012); State v. Levy, 292 Kan. 379, 384–85, 253 P.3d 341 (2011); State v. Trevino, 290 Kan. 317, 320–22, 227 P.3d 951 (2010); State v. Mondragon, 289 Kan. 1158, 1163–65, 220 P.3d 369 (2009); State v. Ortega–Cadelan, 287 Kan. 157, 159–61, 194 P.3d 1195 (2008). While this case does not involve an attempt to raise the issue for the first time on appeal, Stegnik failed at the district court level to insure that the district court made the necessary factual findings for this court to evaluate the first Freeman factor. Hence, the procedural hurdle in this case arises from the district court's failure to state, in a contested matter, “the finding of facts and conclusions of law in compliance with K.S.A. 60–252” as required by Kansas Supreme Court Rule 165 (2012 Kan. Ct. R. Annot. 262). “ ‘Appellate courts do not make factual findings but review those made by district courts. [Citation omitted.]’ “ Seward, 289 Kan. at 720.

Although Stegnik neglects to address the issue of preservation in his brief, in Seward, our Supreme Court addressed a similar case where, despite Seward's effort to raise his constitutional challenge to Jessica's Law, the district court failed to make any findings and conclusions and Seward failed to object. Seward, 289 Kan. at 718–21. The Supreme Court explained that while the district court's duty to make adequate findings and conclusions on the record is mandatory, “a litigant who fails to object to inadequate Rule 165 findings and conclusions in the district court is foreclosed from making an appellate argument that would depend upon what is missing. [Citations omitted.]” 289 Kan. at 720–21. The Supreme Court remanded the case to the district court for the requisite findings, however, with the admonition that Seward was an “exceptional” case because of “the newness of the constitutional issues raised by Jessica's Law.” 289 Kan. at 721.

Recently, in State v. Raskie, 293 Kan. 906, 923–26, 269 P.3d 1268 (2012), a case with a procedural history similar to Seward, our Supreme Court again remanded for entry of sufficient factual findings and conclusions of law on whether the Raskie's Jessica's Law sentence violated § 9 of the Kansas Constitution Bill of Rights or the Eighth Amendment. In so doing, however, the court again emphasized the “exceptional” nature of this outcome and explained:

Seward was filed on October 2, 2009. The journal entry in Raskie's case was filed June 29, 2009, i.e., before this court had made it clear that a defendant would have the duty to ensure adequate findings of fact. Hence, when Raskie's journal entry was filed, his duty under Rule 165 was unclear.” Raskie, 293 Kan. at 925.

Unlike Raskie, the journal entry in Stegnik's case was filed on March 9, 2010, well after Seward was filed. Accordingly, because Stegnik failed to comply with his duty to insure adequate findings and conclusions, we decline to review his claim relating to § 9 of the Kansas Constitution Bill of Rights. Eighth Amendment to the United States Constitution

According to the United States Supreme Court, “[t]he concept of proportionality is central to the Eighth Amendment. Embodied 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 S.Ct. 2011, 2021, 176 L.Ed.2d 825 (2010). In reaching this holding, the Court recognized the availability of an Eighth Amendment proportionality challenge in cases besides those involving the death penalty. See Mossman, 294 Kan. at 921. Under Graham, there are two general classifications for an attack on a term-of-years sentence. See 294 Kan. at 921–22. “The first [category] involves challenges to the length of term-of-years sentences given all the circumstances in a particular case. The second comprises cases in which the Court implements the proportionality standard by certain categorical restrictions on the death penalty.' “ 294 Kan. at 921–22 (quoting Graham, 130 S.Ct. at 2021).

Appellate courts review a case-specific proportionality challenge under the same standard of review as applied to decisions involving § 9 of the Kansas Constitution Bill of Rights. See Cameron, 294 Kan. at 895–96.

“When conducting an Eighth Amendment analysis to determine whether a sentence for a term of years is grossly disproportionate under the circumstances of a particular defendant's crime, a court initially compares the gravity of the offense with the severity of the sentence. 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. In the rare case in which this threshold comparison leads to an inference of gross disproportionality, the court then compares the defendant's sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions. If this comparative analysis validates an initial judgment that the sentence is grossly disproportionate, the sentence is cruel and unusual. [Citations omitted.]” Ross, 295 Kan. at 428–29.

Similar to the first Freeman factor, the primary inquiry for a proportionality challenge—whether the defendant's sentence is grossly disproportionate under the circumstances—is case-specific and inherently factual in nature. See Mossman, 294 Kan. at 922–24. Once again, Stegnik's failure to comply with his duty to ensure adequate findings also precludes this court from considering his proportionality challenge under the Eighth Amendment. See 294 Kan. at 922.

In contrast to issues involving a claim of cruel and/or unusual punishment under § 9 of the Kansas Constitution Bill of Rights or a case-specific proportionality claim under the Eighth Amendment, appellate courts exercise unlimited review over Eighth Amendment categorical proportionality challenges because “only questions of law are implicated.” Mossman, 294 Kan. at 925.

When conducting a categorical analysis, courts follow these steps:

“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.]' “ Mossman, 294 Kan. at 929 (quoting Graham, 130 S.Ct. at 2022).

Our Supreme Court recently concluded that a sentence of lifetime postrelease supervision, under K.S.A.2008 Supp. 22–3717(d)(1)(G), for aggravated indecent liberties with a child, in violation of K.S.A. 21–3504(a)(1)—one of Stegnik's crimes of conviction—is not “categorically disproportionate, even for first-time sex offenders, and is therefore not cruel and unusual under the Eighth Amendment. [Citations omitted.]” Ross, 294 Kan. at 430. Similarly, in Cameron, 294 Kan. 884, Syl. ¶ 3, the Supreme Court held that “[a] sentence of lifetime postrelease supervision under K.S.A. 22–3717(d)(1)(G) for three counts of aggravated indecent solicitation of a child, in violation of K.S.A. 21–3511(a)—another of Stegnik's crimes of conviction—is not categorically disproportionate and, therefore, is not cruel and unusual punishment under the Eighth Amendment.

Finally, in State v. Brown, No. 102,940, unpublished opinion, Court of Appeals, filed December 4, 2012, a panel of our court noted:

“[T]he nature of the offense at issue is the crimes of conviction—criminal sodomy and attempted criminal sodomy. By applying the same analysis and reaching the same conclusions in both Mossman and Cameron, which involved two different sex crimes, our Supreme Court suggested it would reject a challenge to the imposition of lifetime postrelease supervision regardless of the sex crime involved.” (Emphasis added.) Slip op. at 8.
The panel in Brown followed our Supreme Court's analysis in Mossman and Cameron and concluded that the defendant's claim of categorical disproportionality in an analogous criminal sodomy case was without merit. Slip op. at 8.

Our court is duty bound to follow precedent from the Kansas Supreme Court absent some indication that the court is departing from its previous position. State v. Merrills, 37 Kan.App.2d 81, 83, 149 P.3d 869,rev. denied 284 Kan. 949 (2007). There is no evidence to suggest our Supreme Court is considering a departure from this position. See Ross, 294 Kan. at 429–30. Accordingly, Stegnik's categorical proportionality challenge under the Eighth Amendment is without merit.

Affirmed.


Summaries of

State v. Stegnik

Court of Appeals of Kansas.
Mar 22, 2013
297 P.3d 311 (Kan. Ct. App. 2013)
Case details for

State v. Stegnik

Case Details

Full title:STATE of Kansas, Appellee, v. Cory A. STEGNIK, Appellant.

Court:Court of Appeals of Kansas.

Date published: Mar 22, 2013

Citations

297 P.3d 311 (Kan. Ct. App. 2013)