Opinion
No. 106,136.
2012-11-9
STATE of Kansas, Appellee, v. Rondal GENZEL, Appellant.
Appeal from Geary District Court; Maritza Segarra, Judge. Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Michelle L. Brown, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Geary District Court; Maritza Segarra, Judge.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Michelle L. Brown, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., MARQUARDT, J., and BRAZIL, S.J.
MEMORANDUM OPINION
PER CURIAM.
Rondal Genzel pled no contest to one count of aggravated indecent solicitation of a child. Prior to sentencing, Genzel filed a motion for departure from postrelease supervision and a motion to declare K .S.A. 22–3717(d)(1)(G) unconstitutional. The district court sentenced Genzel to 32 months' imprisonment and imposed lifetime postrelease supervision. Genzel timely appeals. We affirm in part and vacate in part.
On July 4, 2010, Junction City Police Officer Jeremy Convert was dispatched to the Genzel home in response to a report of indecent liberties with a child. At the home, Officer Convert received information that Genzel had inappropriately touched A.J., his 11–year–old stepdaughter. A.J. told officers that while she was lying on the couch with Genzel, he touched her “private parts,” attempted to put her hand down his pants, and tried to kiss her. Genzel's 10–year–old stepdaughter F.J. witnessed the incident. Genzel told the girls not to tell anyone or he would divorce their mother and they would be without a father. The girls, however, did tell their mother.
Genzel denied that the incident took place, claiming that A.J. and F.J. were lying. He, however, sent the following text messages to his wife that night:
“Babe. This is so messed up. I messed up so bad. I was supposed to be the adult and I messed that up. I can't do anything right. You known that. I don't know what to do. I [ sic ] so sorry babe. Its [ sic ] all on me don't be mad at [A.J.]”
“Babe honestly I don't know. I love them so much. I messed up. I can't explain why or what I was thinking. That's our daughter! I just messed up big time and don't know what to do.”
Officer Convert arrested Genzel and charged him with one count of aggravated indecent liberties with a child and two counts of aggravated intimidation of a victim.
Genzel pled no contest to one count of aggravated indecent solicitation of a child, a severity level 5 person felony. The State dismissed the other charges. Prior to sentencing, Genzel filed a motion to delete the postrelease supervision portion of his sentence and to declare K.S.A. 22–3717(d)(l)(G) unconstitutional. At sentencing, the district court discussed State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978) and denied Genzel's motion. The district court stated, “[T]he Court must find that under State v. Freeman, and under the totality of the circumstances, the defendant has not met [his] burden, in this case, and has failed to rebut the validity of the statute.” The district court sentenced Genzel to 32 months' imprisonment with lifetime postrelease supervision. Genzel timely appeals.
Lifetime Postrelease Supervision
On appeal, Genzel argues that his sentence of lifetime postrelease supervision violates the constitutional prohibition against cruel and unusual punishment in the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights.
The constitutionality of a sentencing statute is a question of law over which this court exercises unlimited review. State v. Allen, 283 Kan. 372, 374, 153 P.3d 488 (2007). Since the parties filed their briefs in this case, the Kansas Supreme Court decisions of State v. Mossman, 294 Kan. 884, 281 P.3d 153 (2012), and State v. Cameron, 294 Kan. 901, 281 P.3d 143 (2012), were released.
In Mossman, the defendant appealed the imposition of lifetime postrelease supervision following his conviction of aggravated indecent liberties with a child. He argued that lifetime postrelease supervision constitutes cruel and/or unusual punishment and violated § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution. The Kansas Supreme Court rejected Mossman's arguments and concluded the sentence was not disproportionate to the seriousness of his crime, was not grossly disproportionate to the sentences imposed for other crimes in Kansas or similar crimes in other states, and was not categorically unconstitutional. See 294 Kan. 901, Syl. ¶¶ 5, 7, 9.
In Cameron, the defendant was sentenced to lifetime postrelease supervision for conviction of three counts of aggravated indecent solicitation of a child. On appeal, Cameron made the same arguments as Mossman. The court again rejected these arguments and concluded that lifetime postrelease supervision is not disproportionate to the seriousness of the crime, is not grossly disproportionate to sentences imposed for other crimes in Kansas or similar crimes in other states, and is not categorically unconstitutional. 294 Kan. 884, Syl. ¶¶ 1, 2, 3. Thus, while at the time Genzel filed his appeal and briefs the issue was undecided by our Supreme Court, now the issue has been decided. These cases are dispositive on Genzel's case.
As stated in Mossman, Cameron, and Freeman, this court recognized: “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.” Freeman, 223 Kan. at 367. The court established a three-part test to aid in evaluating a sentence:
“(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.” Freeman, 223 Kan. at 367.
In reviewing the nature of the offense and the character of the offender, the district court stated, “This involved a child of the age of 11 years old. The defendant, in this case, was 28 years old, at the time that this offense was—was committed. He exceeded her in age by more than double. He was an adult and she was a child.” Further, even though Genzel argues this was not a violent crime, “it is considered a violent crime under Kansas law. And a particular reason for that is because the legislature has deemed that children are a vulnerable segment of our society, and are entitled to more protections than—or—or need more protections than other segments of our society.” Genzel claims that because he did not penetrate her, but “simply touched her,” he should not be subjected to lifetime postrelease supervision.
The district judge stated:
“[Genzel] intentionally enticed or solicited a child under the age of 14 to commit or submit to an unlawful sexual act. Okay? I don't know if he will do that again, but again, this is a type of offense that was committed where an adult was preying on a child for sexual reasons.
“Is there a logical reason why the legislature would want to impose a longer period of supervision? I think that's a valid reason. I—and I think that's a reason that applies here. I don't have any evidence to suggest that this particular defendant should not be under that type of supervision.”
There is no question that the crime is serious and one that can create significant psychological harm. Substantial competent evidence supports the district court's findings relating to the purpose of the punishment.
Genzel argues that his lifetime postrelease supervision sentence is disproportionate to other sentences for Kansas crimes. Genzel specifically argues that he would receive a “ less severe postrelease sentence had he committed the more severe crime of murder.” The district court compared Genzel's sentence to that of murder and stated:
“And again, because of the nature of the offense, because of ... the fact that this crime involved a child, and involves children, that there is a—there is a reason that the legislature could very well—did very well suggest, think, and believe, and then say that these types of offenses needed to have a longer supervision period.”
Both Cameron and Mossman discussed the proportionality issue. In Mossman, the court concluded that while a defendant subject to lifetime postrelease supervision is under a longer cumulative sentence than a defendant sentenced for second-degree murder, a “sentence to lifetime postrelease supervision [for a sexually violent offense] is not grossly disproportionate in relation to the sentence applicable to second-degree murder in Kansas when we consider the penological purposes, the seriousness of the crime, and the other concerns discussed in relation to the first Freeman factor.” Mossman, 294 Kan. at 917. In Cameron, the Court explained it as “the difference in proportionality between Cameron's sentence, especially in light of the factual circumstances, and one imposed for second-degree murder is not so significant that the second Freeman factor outweighs the first Freeman factor.” 294 Kan. at 893. The district court's factual findings support its legal conclusion that the second Freeman factor does not support Genzel's argument.
Under the third Freeman factor, comparing the penalty with punishments in other jurisdictions for the same offense, Genzel argues: “There is a national consensus against mandatory lifetime postrelease supervision without the possibility of release or discharge for this class of offenses.” In evaluating the third factor, the district judge stated:
“And what you wrote here, which struck me, is, ‘Mr. Genzel submits that while lifetime postrelease is not unusual, it appears not to be the norm for the crimes in this category.’...
“For this particular category, it may not be, but for this type of offense, it is. Again, if—if it were that this type of offense were not construed, were not given the definition of being a sexually motivated crime, and had this length of lifetime supervision, I could see the difference, there. But this is a sexually motivated crime and ... it carries that lifetime supervision.”
Our Supreme Court held in Cameron:
“While we find some merit to Cameron's arguments that only a minority of states impose a similar punishment, the lifetime postrelease supervision sentence is proportionate to sentences mandated in some other jurisdictions and is not grossly disproportionate in light of the strength of the first Freeman factor. As we held in Mossman:
“ ‘Under the facts of this case, a defendant's sentence of lifetime postrelease supervision under K.S.A. 22–3717(d)(1)(G) for the crime of aggravated indecent liberties with a child is not cruel or unusual punishment under § 9 of the Kansas Constitution Bill of Rights; in other words, it is not so disproportionate to the crime that it shocks the conscience and offends fundamental notions of human dignity. Factors leading to this conclusion include: the nature of the offense, which is serious and is a sex crime against a minor that historically has been treated as a forcible or violent felony regardless of whether there is physical force; the defendant's characteristics; and the penological goals of postrelease supervision, which include retribution, deterrence, incapacitation, and rehabilitation. These factors outweigh the lack of strict proportionality with other sentences in Kansas and other jurisdictions, especially given that the sentence is not grossly disproportionate.’ Mossman, 294 Kan. 901, Syl. ¶ 5.” Cameron, 294 Kan. at 894–95.
For these same reasons, Genzel's sentence for the crime does not violate § 9 of the Kansas Constitution Bill of Rights.
Genzel also argues that his lifetime postrelease supervision sentence violates the prohibition against cruel and unusual punishment under the Eighth Amendment to the United States Constitution. In Mossman and Cameron, the Kansas Supreme Court considered the United States Supreme Court's recent opinion, Graham v. Florida, 560 U.S. ––––, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010).
Graham challenged a sentence under the Eighth Amendment, claiming it was cruel and unusual punishment because it falls into one of two general classifications. “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.” 130 S.Ct. at 2021.
With regard to the first federal category—involving a case-specific proportionality analysis—in Mossman, our Supreme Court determined this issue involves the same standard of appellate review as applies to the application of the Freeman factors. Further, as noted in Mossman, the United States Supreme Court has emphasized that it is only the rare case where the threshold comparison of the gravity of the offense and the harshness of the penalty will lead to an inference of gross disproportionality. Mossman, 294 Kan. at 922 (citing Graham, 130 S.Ct. at 2022).
“This case is not such a rare case given the severity of the crime. Moreover, while the sentence is lengthy, lifetime postrelease supervision is not as harsh a punishment as imprisonment and is aimed at safely integrating a sex offender into society and protecting the public.” Cameron, 294 Kan. at 896. Given the seriousness of the offense, the vulnerability of Genzel's victim, the potential psychological damage to A.J., and the penological goals of postrelease supervision, Genzel's case-specific arguments are unavailing. See Cameron, 294 Kan. at 896.
The Graham Court outlined the steps of a categorical analysis, stating:
“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.]” Graham, 130 S.Ct. at 2022.
Explaining the application of these factors, the Court stated:
“Community consensus, while ‘entitled to great weight,’ is not itself determinative of whether a punishment is cruel and unusual. [Citation omitted.] In accordance with the constitutional design, ‘the task of interpreting the Eighth Amendment remains our responsibility.’ [Citation omitted.] The judicial exercise of independent judgment 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. [Citations omitted.] In this inquiry the Court also considers whether the challenged sentencing practice serves legitimate penological goals. [Citations omitted.]” Graham, 130 S.Ct. at 2026.
Finally, the Graham Court noted its past cases recognized retribution, deterrence, incapacitation, and rehabilitation as legitimate goals of penal sanctions. 130 S.Ct. at 2028.
With regard to the categorical analysis, Genzel fails to point to any reasons why his sentence is cruel and unusual punishment. He, however, suggests that “the Eighth Amendment does not permit an offender to be sentenced to lifetime postrelease supervision for a sex offense, not involving pornography, where the offender and the victim do not engage in physical contact, much less a physical sexual act.” Genzel argues there is a “national consensus against lifetime postrelease supervision for this class of offenses” and explains that only seven states impose this supervision for this type of offense.
Our Supreme Court, however, disagreed, citing United States v. Williams, 636 F.3d 1229 (2011):
“Here, ‘objective indicia’ suggest that society is comfortable with lifetime sentences of supervised release for sex offenders, as such sentences are common. According to the United States Sentencing Commission, in the last five years, federal courts have sentenced 1875 defendants convicted of child pornography and child prostitution crimes to lifetime supervised release. [Citation omitted.] By way of comparison, in banning the sentence of life without parole for juvenile nonhomicide offenders, the Supreme Court noted that there were then just 123 people in the [country] serving such sentences. See Graham, 130 S.Ct. at 2024. Further, the percentage of federal sex offenders receiving life terms of supervised release is increasing, climbing from 9.3 percent in 2005, to 20.5 percent in 2009. [Citation omitted.]” Williams, 636 F.3d at 1233–34.
Further, several other states have adopted lifetime postrelease supervision for sexually violent crimes. See Mossman, 294 Kan. at 930.
Lastly, based on the court's “independent judgment,” we consider “whether the challenged sentence serves legitimate penological goals,” See Williams, 636 F.3d at 1234. The goals of 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.’ [Citation omitted.]” Mossman, 294 Kan. at 930. Genzel argues that rehabilitation is not a proper goal here because of the “one-size-fits-all approach” and that if someone was likely to reoffend, Kansas could civilly commit them. He also suggests that lifetime postrelease supervision will not rehabilitate offenders because it is for the offender's entire lifetime. However, just because Genzel does not agree with the penological goals of lifetime postrelease supervision, it does not imply these goals are illegal. See Williams, 636 F.3d at 1234.
Genzel's sentence of lifetime postrelease supervision for his conviction of aggravated indecent solicitation of a child is not categorically disproportionate and, therefore, is not cruel and unusual punishment under the Eighth Amendment to the United States Constitution.
No–Contact Order
As a condition of sentencing, the district court ordered that Genzel have no contact with the victim. Genzel asserts, and the State agrees, that the district court did not have the authority to impose a no-contact order as a condition on his sentence. “The question of whether a sentence is illegal is a question of law over which this court has unlimited review.” State v. Davis, 283 Kan. 767, 768–69, 156 P.3d 665 (2007).
In State v. Plotner, 290 Kan. 774, 782, 235 P.3d 417 (2010), the Kansas Supreme Court held that K.S.A. 21–4603d(a) does not authorize the district court to impose a no-contact order as a condition of a prison sentence. Our Supreme Court concluded a no-contact order imposed under K.S.A. 21–4603d(a) did not conform to statute and, thus, was an illegal sentence. The Plotner court did not remand for resentencing but simply vacated the illegal no-contact condition of Plotner's sentence and held that the remaining portions of the sentence were valid. 290 Kan. at 782.
Because Genzel's no-contact order constitutes an illegal sentence, the no-contact order is vacated. The remainder of Genzel's sentence is affirmed.
Affirmed in part and vacated in part.