Opinion
111,326.
06-12-2015
STATE of Kansas, Appellee, v. Keith B. THOMPSON, Appellant.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., BRUNS, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Keith B. Thompson appeals his sentence after pleading guilty to two counts of sexual exploitation of a child. Thompson 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 and the law, we do not find Thompson's case-specific challenge to be persuasive. Specifically, we do not find his sentence to be disproportionate to the nature of his crimes nor do we find his sentence to constitute cruel and/or unusual punishment. Thus, we affirm.
Facts
On October 25, 2009, 37–year–old Thompson sent a text message to an individual under federal investigation for possessing child pornography with an attached photograph of a nude girl who appeared to be under the age of 10, lying with her back on the ledge of a bathroom tub and her legs spread. A few days later, Thompson sent the same individual two additional photographs—one of a nude female in a similar position as the first who appeared to be under the age of 18 and the other of a girl wearing a bikini in a sexual position who appeared to be about 10 years old.
During an interview with police, Thompson admitted that he had previously used his cell phone to log into a chat room where people exchanged child pornography. Thompson admitted that he had received pornographic photographs of children and that he had sent text messages to other individuals containing child pornography. Specifically, he admitted to previously sending between 10 and 15 text messages with child pornography attached.
On July 29, 2010, the State charged Thompson with two counts of sexual exploitation of a child for the two nude photographs of children sent from his phone. He eventually entered into a plea agreement and pled guilty to both counts. On May 2, 2012, the district court sentenced him to serve 60 months' probation and imposed an underlying sentence of 68 months. In addition, the district court sentenced him to 24 months' postrelease supervision.
A condition of Thompson's probation was that he was not to have internet access. However, since Thompson was required to access the internet at a local learning center to obtain his GED, the district court allowed him to use the internet for educational purposes only. In doing so, the district court cautioned Thompson not to access any inappropriate material.
On May 23, 2013, the State sought to revoke Thompson's probation. The State alleged that while using a computer at the learning center, Thompson had accessed and downloaded a picture of a Victoria's Secret model in lingerie, a picture of a female body builder in a bikini, and a drawing of a nude fairy. He also downloaded several other images to a USB drive, but the State was unable to produce these images. The internet history on the computer indicated that Thompson had entered several image searches that allowed him to view hundreds of erotic images. Thompson ultimately stipulated that he had violated the terms of his probation, and the district court revoked his probation. The district court then ordered him to serve his original sentence, which included 24 months' postrelease supervision.
A few weeks after the probation revocation hearing, the Kansas Department of Corrections informed the district court and the parties that Thompson was required to serve lifetime postrelease supervision pursuant to K.S.A.2009 Supp. 22–3717(d)(1)(G). In response, the district court held a hearing on the issue. At the hearing, Thompson challenged the constitutionality of lifetime postrelease supervision and the district court ordered the parties to brief the issue.
On November 14, 2013, the district court ruled from the bench that its original sentence was illegal because Thompson had been convicted of a sexually violent crime. The district court also considered Thompson's constitutional challenge and found that lifetime postrelease supervision is not categorically disproportionate nor is it disproportionate as applied to Thompson. The district court entered a journal entry incorporating its ruling on November 19, 2013. Thereafter, Thompson timely appealed.
Analysis
On appeal, Thompson 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
Thompson 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.2009 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 sexual exploitation of a child falls within the purview of a “sexually violent crime.” K.S.A.2009 Supp. 22–3717(d)(2)(H). As a result, Thompson 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, § 9 of the Kansas Constitution Bill of Rights prohibits the punishment “ ‘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.’ “ State v. Funk, No. 107,422, 2015 WL 2261773, at *7 (Kan.2015) (quoting State v. Freeman, 223 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. As to this factor, Thompson argues (1) that he made no physical contact with the children in the photographs; (2) that he did not take the photographs; (3) that his criminal history was limited to a 2006 misdemeanor conviction for not having liability insurance; (4) and that the evidence submitted at the probation revocation hearing did not demonstrate that he was in danger of reoffending.
Regarding the nature of the crime, we find neither the fact that Thompson did not make any physical contact with the victims nor the fact that he did not take the photographs himself to be persuasive. As the Kansas Supreme Court has recognized, “ ‘[t]he distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children’ “ because (1) the product is a permanent record of the children's involvement, and the harm done to the children is exacerbated by their circulation; and (2) the only way to stop the sexual exploitation of children through the production of child pornography is to halt the continued distribution of child pornography. State v. Zabrinas, 271 Kan. 422, 430, 24 P.3d 77 (2001) (quoting New York v. Ferber, 458 U.S. 747, 759, 102 S.Ct. 3348, 73 L.Ed.2d 1113 [1982] ).
Moreover, as the district court noted:
“There are real victims in this case, in this crime. Those children are real children that there are images of and they are exploited in a real and substantive way. Each time that image is transmitted, each time that image is viewed, there is trauma.... The emotional trauma of those children in those images transmitted by the defendant ... is unique in that again and again, daily even, possibly daily those children know that they are being exploited by the transmission and the viewing. This emotional trauma, this awareness of the constant transmission and viewing of these images that were maybe taken years ago, maybe months ago, is a unique trauma to these young girls.
“I believe [Thompson's] actions in this crime contributed to a very aggressive national, even international, community of child pornographers that simply would dry up but for the ongoing demand of child pom.... And the State of Kansas has a very real interest in protecting children at risk or exploited by the child pom industry, an industry that is committed to treating children as a commodity to be traded at the impulses of disturbed minds.”
Indeed, the evidence demonstrates that Thompson contributed to the broad market of child pornography and further aggravated the initially abused children depicted in the photographs by distributing the photographs to others. The record reflects that federal agents discovered that Thompson sent the photographs to a person who possessed 538 images of young children in various sexual situations with adult males. In addition, Thompson obtained the images he distributed from a community of child pornographers in a chat room and that he sent out between 10 and 15 text messages containing child pornography to other people.
Regarding his character, a review of the record reveals that Thompson was 37 years old at the time of the crimes and had been employed as a bus driver for Goddard public schools. Furthermore, Thompson is the father to two young children, who could have been accidentally exposed to the images he kept on his phone. In addition, even though Thompson knew that his internet use was being monitored, he still chose to access hundreds of erotic images and download several inappropriate images to a thumb drive.
The Kansas Supreme Court has held that lifetime postrelease supervision serves several legitimate penological goals, even for first-time sex offenders:
“ ‘Rehabilitation and incapacitation are central purposes of the criminal justice system, and they are particularly critical here given the propensity of sex offenders to strike again. Supervised release can further the end of rehabilitating sex offenders. For instance, in this case, the express conditions of supervised release will require Williams to receive sex offender treatment and to avoid situations where he may be tempted to offend again. Relatedly, supervised release helps incapacitate sex offenders by keeping them under the watchful eye of probation officers who may be able to detect problems before they result in irreparable harm to innocent children.’ “ State v. Williams, 298 Kan. 1075, 1088–89, 319 P.3d 528 (2014) (quoting United States v. Williams, 636 F.3d 1229, 1234 (9th Cir.), cert. denied 132 S.Ct. 188 (2011).
Accordingly, we conclude that the district court's finding that lifetime postrelease supervision was not disproportionate with the nature of Thompson's crimes is supported by the evidence. Similarly, we conclude that the district court's findings regarding Thompson's character are supported by substantial evidence. Thus, we find that the first Freeman factor weighs against Thompson.
In regards to the second and third Freeman factors, the Kansas Supreme Court has held that lifetime postrelease supervision for those who are found guilty of a sexually violent crime is not constitutionally disproportionate to sentences imposed for other, arguably more serious, crimes in Kansas nor is it disproportionate to punishments imposed in other jurisdictions for similar offenses. See Funk, 2015 WL 2261773, at *12 (“A more apt comparison is that Kansas imposes a more serious punishment for more serious sex crimes.”); State v. Mossman, 294 Kan. 901, 912–21, 281 P.3d 153 (2012) ; State v. Cameron, 294 Kan. 884, 893–95, 281 P.3d 143 (2012). As an intermediate appellate court, we are duty bound to follow precedent from the Kansas Supreme Court. State v. Hall, 298 Kan. 978, 983, 319 P.3d 506 (2014).
We, therefore, conclude that Thompson's sentence to lifetime postrelease supervision does not violate § 9 of the Kansas Constitution Bill of Rights.
Eighth Amendment of the United States Constitution
Thompson 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, Thompson 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, sexual exploitation of a child is “ ‘intrinsically related to the sexual abuse of children.’ “ Zabrinas, 271 Kan. at 430. Here, Thompson's conduct of transmitting child pornography further exacerbated the initial abuse on the children depicted in the photographs he distributed. Moreover, his troubling conduct while on probation illustrates the valid penological goals that are furthered by lifetime postrelease supervision.
We, therefore, conclude that Thompson's sentence does not violate the Eighth Amendment of the United States Constitution.
Affirmed.