Opinion
111,989.
06-12-2015
STATE of Kansas, Appellee, v. John Edward STONE, Appellant.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Cheryl M. Pierce, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.
Cheryl M. Pierce, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., BRUNS, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
John Edward Stone appeals his sentence after pleading guilty to one count of aggravated indecent liberties with a child. Stone contends that as applied to him, lifetime postrelease supervision is unconstitutional under § 9 of the Kansas Constitution Bill of Rights and under the Eighth Amendment of the United States Constitution. Based on our review of the record as applied to the law, we do not find Stone's case-specific challenge to be persuasive. In particular, we do not find his sentence to be disproportionate to the nature of his crime nor do we find his sentence to constitute cruel and/or unusual punishment. Thus, we affirm.
Facts
On June 1, 2012, Stone pled guilty to one count of level 4 aggravated indecent liberties with a child in violation K.S.A.2011 Supp. 21–5506(b)(2)(A). In exchange for Stone's plea, the State agreed to dismiss a second count of aggravated indecent liberties with a child. At the plea hearing, Stone admitted that he fondled his 14–year–old niece's breasts and pubic area. He also admitted that he had her fondle his penis. At the time of the incident, Stone was the victim's guardian, and she lived in his home. On August 10, 2012, after denying Stone's motion for a departure, the district court sentenced Stone to 71 months of imprisonment and 36 months of postrelease supervision.
The district court received a letter from the sentence computation unit of the Kansas Department of Corrections on October 28, 2013, which indicated that Stone should have been sentenced to lifetime postrelease supervision. On November 8, 2013, the State filed a motion to correct an illegal sentence. In the motion, the State argued that Stone should have been sentenced to a term of lifetime postrelease supervision as required by K.S.A.2011 Supp. 22–3717(d)(1)(G) because he was convicted of a sexually violent crime.
On March 7, 2014, Stone filed an objection to lifetime postrelease supervision. In his objection, Stone argued that sentencing him to lifetime postrelease supervision would be unconstitutional. Ultimately, the district court granted the State's motion to correct an illegal sentence and resentenced Stone on April 8, 2014. Moreover, the district court determined that imposing lifetime postrelease supervision for Stone did not constitute cruel and/or unusual punishment.
On April 9, 2014, Stone filed a timely notice of appeal.
Analysis
On appeal, Stone does not raise a categorical challenge to his sentence. Rather, he only argues that—as applied to him—lifetime postrelease supervision violates the prohibitions on cruel and/or unusual punishment found in § 9 of the Kansas Constitution Bill of Rights and in the Eighth Amendment of the United States Constitution.
Section 9 of the Kansas Constitution Bill of Rights
Stone contends that his sentence of lifetime postrelease supervision violates § 9 of the Kansas Constitution Bill of Rights. When a defendant argues that a sentence is cruel or unusual, we use a bifurcated standard to review the challenge. First, we review the district court's factual findings, without reweighing the evidence, for substantial competent evidence. Second, we retain unlimited review over the district court's legal conclusions. State v. Spear, 297 Kan. 780, 799–800, 304 P.3d 1246 (2013).
It is undisputed that K.S.A.2011 Supp. 22–3717(d)(1)(G) imposes a mandatory lifetime postrelease supervision requirement on those who have been convicted of a sexually violent crime committed on or after July 1, 2006. The crime of aggravated indecent liberties with a child falls within the purview of a “sexually violent crime.” K .S.A.2011 Supp. 22–3717(d)(2)(C). As a result, Stone is subject to mandatory lifetime postrelease supervision.
Even if a punishment does not rise to the level of cruel or unusual under the Eighth Amendment, it is prohibited by § 9 of the Kansas Constitution Bill of Rights “ ‘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.’ “ Spear, 297 Kan. at 799 (quoting State v. Gomez, 290 Kan. 858, Syl. ¶ 9, 235 P.3d 1203 [2010] ). In determining whether a punishment is impermissibly disproportionate, we examine three factors—commonly known as the Freeman factors:
“ ‘(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.’ “ Spear, 297 Kan. at 799 (quoting State v. Freeman, 233 Kan. 362, 367, 574 P.2d 950 [1978] ).
The Kansas Supreme Court has found that none of the Freeman factors is controlling, but “one consideration may weigh so heavily that it directs the final conclusion.” State v. Ortega–Cadelan, 287 Kan. 157, 161, 194 P.3d 1195 (2008). Rather, our Supreme Court has clarified that the first Freeman factor is not a threshold determination. Instead, courts are to take a “holistic approach” in applying the factors. See State v. Seward, 296 Kan. 979, 985, 297 P.3d 272 (2013).
The first Freeman factor is “inherently factual, requiring examination of the facts of the crime and the particular characteristics of the defendant.” Ortega–Cadelan, 287 Kan. at 161. In analyzing this factor, we note that Stone was charged with the following:
“On or about the 4th day of March, 2012, in Butler County, Kansas, [Stone], did engage in lewd fondling or touching of a child without consent, who is 14 or more years of age but less than 16 years of age, to wit: E.E.S .... to wit: defendant had victim fondle the defendant's male sex organ, done or submitted to with the intent to arouse or satisfy the sexual desires of the victim, the defendant, or both, in violation of K.S.A. 21–5506(b)(2)(A).”
Stone contends that the nature of the offense does not warrant lifetime postrelease supervision because there was no penetration. Nevertheless, our Supreme Court has held “[t]hat a sexually violent crime could have been committed more violently is legally insignificant.” State v. Newcomb, 296 Kan. 1012, 1018, 298 P.3d 285 (2013). Moreover, the Kansas Legislature has determined that sexually violent crimes deserve mandatory lifetime postrelease supervision, and statutes are presumed to be constitutional. See State v. Woodard, 294 Kan. 717, 720, 280 P.3d 203 (2012) ; State v. Laturner, 289 Kan. 727, 735, 218 P.3d 23 (2009). Additionally, it is not this court's role “to criticize the legislature or to substitute its view on economic or social policy; it is the duty of this court to safeguard the constitution.” State ex rel. Six v. Kansas Lottery, 286 Kan. 557, 562, 186 P.3d 183 (2008).
The commission of a sex act with a child is intrinsically violent and harmful. See State v. Toahty–Harvey, 297 Kan. 101, 108, 298 P.3d 338 (2013). Here, as the district court noted, the evidence showed that Stone “repeatedly touched the victim sexually and had her fondle his penis, often to the point of his ejaculation.” Furthermore, we find it significant that Stone was the victim's guardian and, as such, was in a position of authority over her. Additionally, as the district court pointed out, sexual crimes against children are “ ‘particularly heinous crimes' “ and “society has a penological interest in punishing those who commit sex crimes against minors because such crimes present a special problem and danger to society.” See State v. Mossman, 294 Kan. 901, 909–10, 281 P.3d 153 (2012). Accordingly, we conclude that the district court's finding that lifetime postrelease supervision was not disproportionate with the nature of the offense is supported by the evidence.
Similarly, we conclude that the district court's findings regarding Stone's character are supported by substantial evidence. Stone asserts that although he had a criminal history score of C, he had no prior crimes of a sexual nature and no other convictions in the past 10 years. He also argues that the information contained in the psychological evaluation conducted as part of his motion for a departure sentence shows that he was abused as a child, has a low IQ, and possesses a low risk of recidivism. But as the district court found, Stone “took advantage of [his position as the victim's guardian] for his sexual benefit, and much to the child's detriment.” Moreover, as our Supreme Court has found, society has expressed “ ‘grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class. The risk of recidivism posed by sex offenders is “frightening and high.’ “ “ State v. Breeden, 297 Kan. 567, 589–90, 304 P.3d 660 (2013) (quoting Smith v. Doe, 538 U.S. 84, 103, 123 S.Ct. 1140, 155 L.Ed.2d 164 [2003] ; McKune v. Lite, 536 U.S. 24, 34, 122 S.Ct. 2017, 153 L.Ed.2d 47 [2002] ); see also Mossman, 294 Kan. at 909–10 ; State v. Funk, No. 107,422, 2015 WL 2261773, at *10 (Kan.2015). Therefore, we conclude that the first Freeman factor weighs against Stone.
Turning to the second Freeman factor, which requires comparing a challenged punishment with punishments imposed in the same jurisdiction for more serious offenses, Stone acknowledges that the Kansas Supreme Court has found that lifetime postrelease supervision for a conviction of level 3 aggravated indecent liberties with a child was not grossly disproportionate to other crimes in Kansas. Mossman, 294 Kan. at 917. But Stone contends that level 3 aggravated indecent liberties with a child involves sexual intercourse while level 4 aggravated indecent liberties—of which he was convicted—involves lewd fondling or touching of a child.
As Stone also recognizes, this court has previously found that lifetime postrelease supervision for a conviction of level 4 aggravated indecent liberties with a child is not disproportionate when compared to other crimes in Kansas. See State v. Baber, 44 Kan.App.2d 748, 751–52, 240 P.3d 980 (2010), rev. denied 296 Kan. 1131 (2013). As noted in Baber, “[t]he fact that a murder conviction carries a shorter postrelease supervision term [than an aggravated indecent liberties conviction] does not by itself affect the sentencing statute's validity.” 44 Kan.App.2d at 751. The Kansas Supreme Court recently reiterated that a more appropriate consideration is whether Kansas imposes a more serious punishment for more serious sex crimes. Funk, 2015 WL 2261773, at *12. And like the defendant in Funk, Stone does not point to any specific crime which, compared to his, is both more serious and punished less severely. Thus, we find the second Freeman factor also does not weigh in Stone's favor.
Finally, as to the third Freeman factor—which requires a comparison of the sentence imposed with punishments in other jurisdictions for the same offense—Stone argues that only eight states, including Kansas, mandate lifetime postrelease supervision sentences for lewd fondling or touching of a 14– to 15–year–old child. In Mossman, however, the Kansas Supreme Court found:
“[I]t seems fair to say that less than half of states provide for lifetime postrelease supervision of some or all sex offenders and, because several states have a mechanism for termination of the postrelease supervision under certain conditions, only a handful of states impose punishment as absolute as Kansas' requirement. Nevertheless, Kansas is not alone in imposing mandatory lifetime postrelease supervision for crimes such as Mossman's, and we are not aware of any court that has found lifetime postrelease supervision of a violent sex offender to be cruel and unusual punishment.” 294 Kan. at 920.
Likewise, Stone admits that Kansas is not alone in imposing mandatory lifetime postrelease supervision for this type of violent sex offender, and he has not shown that any other court has found lifetime postrelease supervision to be cruel and unusual punishment. Moreover, the Kansas Legislature has the authority to mandate lifetime postrelease supervision for sexually violent offenders because it has determined that violent sex offenders pose a unique threat to society. Thus, even though the punishment for sexually violent offenders in Kansas may be more severe than in other jurisdictions, a sentence of mandatory lifetime postrelease supervision is not cruel and/or unusual.
We, therefore, conclude that Stone's sentence to lifetime postrelease supervision does not violate § 9 of the Kansas Constitution Bill of Rights.
Eighth Amendment of the United States Constitution
Stone also contends that his sentence violates the Eighth Amendment to the United States Constitution. We review a challenge under the Eighth Amendment under the same bifurcated standard as previously discussed. Specifically, we review the district court's factual findings for substantial competent evidence and we review the district court's legal conclusions de novo. See Mossman, 294 Kan. at 924.
The Eighth Amendment, made applicable to the States through the Fourteenth Amendment, provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend VIII. There are two types of proportionality challenges under the Eighth Amendment: case-specific and categorical. See Mossman, 294 Kan. at 925.
As mentioned above, Stone has asserted only a case-specific challenge in this appeal. When analyzing a case-specific challenge under the Eighth Amendment, the Kansas Supreme Court has found that the “analysis of a § 9 challenge under the Freeman factors ‘applies with equal force’ to a case-specific Eighth Amendment challenge.” Seward, 296 Kan. at 990 (quoting State v. Ross, 295 Kan. 424, 429, 284 P.3d 309 [2012] ).
As more fully set forth above, the commission of a sex act with a child is intrinsically violent and harmful. See State v. Toahty–Harvey, 297 Kan. 101, 108, 298 P.3d 338 (2013). Here, the victim was Stone's 14–year–old niece and he served as her guardian. As the district court noted, Stone took advantage of this position of authority by repeatedly abusing her for his own sexual gratification. The record also reflects the negative impact that Stone's actions have had upon his niece.
We, therefore, conclude that Stone's sentence did not violate the Eighth Amendment of the United States Constitution.
Affirmed.