Opinion
No. 101,214.
2012-12-21
STATE of Kansas, Appellee, v. Dale VANSKIVER, Appellant.
Appeal from Sedgwick District Court; Benjamin L. Burgess, Judge. Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. David Lowden, chief attorney, appellate division, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Benjamin L. Burgess, Judge.
Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. David Lowden, chief attorney, appellate division, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., MALONE, C.J. and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM:
Dale Vanskiver appeals his sentence following his conviction of aggravated indecent liberties with a child. Vanskiver claims that his lifetime postrelease supervision order violates the Eighth Amendment's prohibition against cruel and unusual punishment. For the reasons set forth herein, we affirm the district court's judgment.
On November 4, 2007, the State charged Vanskiver with aggravated indecent liberties with a child, in violation of K.S.A.2006 Supp. 21–3504(a)(2)(A). Vanskiver later pled no contest to the charge, and the district court accepted his plea. Vanskiver filed a motion for a departure from his presumptive prison sentence. At his sentencing hearing, Vanskiver acknowledged that he had a prior conviction of attempted indecent liberties with a child. The district court ultimately reduced Vanskiver's underlying sentence to 48 months in prison instead of the presumptive sentence range of 76 to 86 months. The district court also placed Vanskiver on lifetime postrelease supervision, as required by K.S.A. 22–3717. Vanskiver timely appealed his sentence.
This court initially dismissed Vanskiver's appeal based on the State's argument that this court lacked jurisdiction to consider the appeal because Vanskiver was challenging a presumptive sentence. Vanskiver filed a petition for review and our Supreme Court determined that appellate review was proper because Vanskiver was permissibly raising a constitutional challenge to his sentence. This court then granted leave to both parties to file supplemental briefs.
In his supplemental brief, Vanskiver argues that the district court's lifetime postrelease supervision order is categorically disproportionate to the crime for which he was convicted-aggravated indecent liberties with a child-and therefore cruel and unusual punishment. Specifically, Vanskiver claims that under the Eighth Amendment, neither he nor anyone else should be subject to a lifetime of postrelease supervision for a first-time sex offense with a victim age 14 or 15, without any element of intercourse, prostitution, or pornography. As explained below, Vanskiver's argument has been completely foreclosed upon by State v. Mossman, 294 Kan. 901, 281 P.3d 153 (2012), and its companion case, State v. Cameron, 294 Kan. 884, 281 P.3d 143 (2012).
The constitutionality of a sentencing statute is a question of law subject to unlimited appellate review. State v. Riojas, 288 Kan. 379, 388, 204 P.3d 578 (2009). In addition, appellate courts presume statutes are constitutional and must resolve all doubts in favor of a statute's validity. Courts must interpret a statute in a way that makes it constitutional if there is any reasonable construction that would maintain the legislature's apparent intent. State v. Gaona, 293 Kan. 930, 958, 270 P.3d 1165 (2012).
Preliminarily, Vanskiver did not raise or even hint at any Eighth Amendment challenge to his sentence before the district court. Generally, constitutional issues cannot be raised for the first time on appeal. But Kansas courts have recognized three exceptions to this general rule: (1) the newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the district court is right for the wrong reason. State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010).
In Gomez, the defendant argued for the first time on appeal that his sentence was disproportionate and therefore constituted cruel and unusual punishment under the Eighth Amendment. In deciding whether the court could consider the defendant's arguments raised for the first time on appeal, the court found guidance in the United States Supreme Court's decision in Graham v. Florida, 560 U.S. ––––, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), in which the Court found that imposition of life without parole on juveniles convicted of nonhomicide crimes was categorically unconstitutional. The Graham Court explained that its decisions analyzing proportionality under the Eighth Amendment fall into two general classifications: “The first 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 penally.” 130 S.Ct. at 2021.
After reviewing Graham, the Kansas Supreme Court in Gomez determined that the factors assessed in a categorical proportionality challenge are not case-specific and generally raise questions of law. Therefore, consistent with the first exception to the general rule that an issue cannot be raised for the first time on appeal, a categorical proportionality challenge under the Eighth Amendment may in certain circumstances be raised for the first time on appeal. Gomez, 290 Kan. at 866. Accordingly, we will consider Vanskiver's categorical challenge under the Eighth Amendment.
The Eighth Amendment to the United States Constitution simply states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Meanwhile, K.S.A.2006 Supp. 22–3717(d)(1)(G) states, “Except as provided in subsection (u), persons convicted of a sexually violent crime committed on or after July 1, 2006, and who are released from prison, shall be released to a mandatory period of postrelease supervision for the duration of the person's natural life.” Among a host of other crimes, sexually violent crimes include aggravated indecent liberties with a child. K.S.A.2006 Supp. 22–3717(d)(2)(C).
In raising a categorical proportionality challenge to his sentence, Vanskiver seeks to limit his class of offenders only to those who have been convicted of a first sex offense, with a victim age 14 or 15, and without any element of intercourse, prostitution, or pornography. However, Vanskiver's attempt to limit the class of offenders fails both factually and legally. Factually, Vanskiver cannot qualify as a member of his own proffered class. The record is clear that Vanskiver was previously convicted of attempted indecent liberties in 2003. Therefore, he cannot be classified as a first-time sex offender.
But more importantly, Vanskiver's efforts to limit his class of offenders fail in the same legal respect as the defendant in Mossman, who, similar to Vanskiver, sought to limit “the range of crimes to those involving sex with a child who is 14 or 15 where the crime is committed without any element of force, coercion, prostitution, or pornography.” 294 Kan. at 928. Citing Graham, 130 S.Ct. at 2031–33, our Supreme Court concluded the defendant's distinction was so case-specific that it obliterated the distinction between the two categories of analysis. 294 Kan. at 928. Therefore, our Supreme Court limited the nature of the offense simply to aggravated indecent liberties with a child, the crime for which the defendant was convicted. 294 Kan. at 928.
The broad classification used in Mossman should be used here. Thus, contrary to Vanskiver's attempts to narrowly depict his class of offenders, the sole question before this court is whether offenders convicted of aggravated indecent liberties with a child are subject to cruel and unusual punishment when ordered to serve a lifetime of postrelease supervision. See also Cameron, 294 Kan. at 897 (refusing to categorize the defendant's offense more narrowly than his conviction for aggravated indecent solicitation of a child). And under Mossman and Cameron, the answer to this question is no.
In determining whether a term-of-years sentence is categorically disproportionate, an appellate 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. Mossman, 294 Kan. at 929 (citing Graham, 130 S.Ct. at 2022). Next, guided by the standards elaborated by controlling precedents and by the appellate court's own understanding and interpretation of the Eighth Amendment's text, history, meaning, and purpose, the appellate court must determine in the exercise of its own independent judgment whether the punishment in question violates the Constitution. 294 Kan. at 929 (citing Graham, 130 S.Ct. at 2022).
Our Supreme Court thoroughly performed this analysis in Mossman, and, in doing so, observed that a host of states “have adopted lifetime postrelease supervision for many, if not all, sexually violent crimes.” 294 Kan. at 930. Additional statistics concerning lifetime postrelease supervision orders in the federal justice system further confirm that society is comfortable with sex offenders being subjected to lifetime postrelease supervision. See United States v. Williams, 636 F.3d 1229, 1233–34 (9th Cir.), cert. denied,132 S.Ct. 188 (2011).
Under the second step of the analysis, this court exercises its own independent judgment to determine whether the sentencing practice violates the Eighth Amendment. Graham, 130 S.Ct. at 2022. This determination requires consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question. In this inquiry the court also considers whether the challenged sentencing practice serves legitimate penological goals, including retribution, deterrence, incapacitation, and rehabilitation. 130 S.Ct. at 2026. After conducting this analysis, our Supreme Court in Mossman held that the defendant's sentence to a lifetime postrelease supervision was not categorically disproportionate and therefore not cruel and unusual punishment under the Eighth Amendment. 294 Kan. at 930. See also Cameron, 294 Kan. at 898 (same result).
The facts of Vanskiver's case do not appear to be meaningfully distinguishable from the facts in Mossman and Cameron. The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied, 294 Kan. –––– (2012). Following controlling Kansas Supreme Court precedent, we conclude that Vanskiver's sentence of lifetime postrelease supervision does not constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.
In his first appellate brief, Vanskiver also argues that the district court's lifetime postrelease supervision order is, under the facts of his case, grossly disproportionate to the crime for which he was convicted and therefore constitutes cruel and unusual punishment under both the Eighth Amendment and § 9 of the Kansas Constitution Bill of Rights. But Vanskiver failed to make these arguments in district court. In Gomez, the Kansas Supreme Court determined whether a proportionality challenge under § 9 of the Kansas Constitution Bill of Rights could be raised for the first time on appeal. The court noted that a three-part test for deciding proportionality under § 9 had been set forth in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978). But the court noted that the Freeman factors include both legal and factual inquiries and no single factor controls the outcome of the case. The Kansas Supreme Court concluded that because of the factual inquiries involved, a challenge under § 9 generally cannot be raised for the first time on appeal. Gomez, 290 Kan. at 867–68.
Likewise, a case-specific proportionality challenge under the Eighth Amendment cannot be raised for the first time on appeal. An Eighth Amendment challenge that the length of a term-of-years sentence is disproportionate given all the circumstances in a particular case is a case-specific challenge and is inherently factual. Because appellate courts do not make factual findings but review those made by district courts, such a challenge must be raised in the district court and a defendant must obtain the necessary findings of fact in the district court in order to preserve the issue for appellate review. State v. Berriozabal, 291 Kan. 568, 593, 243 P.3d 352 (2010). Thus, we will not consider Vanskiver's case-specific proportionality challenge for the first time on appeal.
Affirmed.