Opinion
No. 107,802.
2013-05-17
STATE of Kansas, Appellee, v. Darien J. PERKINS, Appellant.
Appeal from Miami District Court; Amy Harth, Judge. Heather Cessna, of Kansas Appellate Defender Office, for appellant. Jason A. Oropeza, assistant district attorney, David L. Miller, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Miami District Court; Amy Harth, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Jason A. Oropeza, assistant district attorney, David L. Miller, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., BUSER, J., and ERNEST L. JOHNSON, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
Darien J. Perkins pled guilty to indecent liberties with a child and was sentenced to 32 months' imprisonment and lifetime postrelease supervision. On appeal, Perkins argues that under the circumstances of his case, lifetime postrelease supervision violates the Kansas and United States Constitutions' prohibitions against cruel and unusual punishment. Finding no merit in Perkins' arguments, we affirm the district court's judgment.
On June 16, 2011, Perkins pled guilty to indecent liberties with a child, lewd fondling or touching, in violation of K.S.A. 21–3503(a)(1), a severity level 5 person felony. At the plea hearing, neither party presented or alleged any facts of the crime; Perkins merely agreed that “if a judge or jury heard all of the evidence in this case, ... [the factfinder] could find [him] guilty of this offense beyond a reasonable doubt.”
Prior to sentencing, Perkins filed a motion arguing that lifetime postrelease supervision under the circumstances of his case is unconstitutional in violation of the Eighth and Fourteenth Amendments to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights. Perkins also raised the arguments at the sentencing hearing. The district court found that lifetime postrelease supervision is constitutionally permissible and sentenced Perkins to 32 months' imprisonment and lifetime postrelease supervision. Perkins timely appealed the district court's judgment.
On appeal, Perkins argues that the imposition of lifetime postrelease supervision under the circumstances of his case is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights. The State replies that lifetime postrelease supervision is not cruel and unusual punishment under either constitution.
The sentencing scheme at issue mandates the imposition of lifetime postrelease supervision for certain sex offenses committed on or after July 1, 2006. K.S.A.2012 Supp. 22–3717(d)(1)(G) requires that a person convicted of a sexually violent crime shall be subject to lifetime postrelease supervision. K.S.A.2012 Supp. 22–3717(d)(2)(B) establishes that indecent liberties with a child, Perkins' crime of conviction, is a sexually violent crime. While on lifetime postrelease supervision, an offender must comply with conditions of release; if a person subject to postrelease supervision violates these conditions but is not convicted of a crime, he or she may have to serve a 6–month period of confinement. See K.S.A.2012 Supp. 22–3717(l)–(m); K.S.A.2012 Supp. 75–5217(a). If the violation results from a conviction for a new misdemeanor, however, the offender may have to serve the entire remaining balance of postrelease supervision; if the violation results from a conviction for a new felony, the offender “shall serve the entire remaining balance of the period of postrelease supervision.” K.S.A.2012 Supp. 75–5217(c), (d). Perkins argues that lifetime postrelease supervision is cruel and unusual punishment based upon this potential life imprisonment.
Section 9 of the Kansas Constitution Bill of Rights
Section 9 of the Kansas Constitution Bill of Rights states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.”
“When determining whether a sentence is cruel or unusual under § 9 of the Kansas Constitution Bill of Rights, a district court must make both legal and factual determinations. On appeal, the appellate court applies a bifurcated standard of review: All of the evidence is reviewed, but not reweighed, to determine whether it is sufficient to support the district court's factual findings, but the legal conclusions that the district court draws from those facts are reviewed de novo. [Citation omitted.]
“A statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court has the authority and the duty to do so. [Citations omitted.]” State v. Ross, 295 Kan. 424, 425–26, 284 P.3d 309 (2012).
In State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), our Supreme Court interpreted § 9 of the Kansas Constitution Bill of Rights to prohibit punishment “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” The court established three factors to weigh when assessing proportionality challenges under § 9:
“(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 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.” 223 Kan. at 367.
Our Supreme Court recently reaffirmed that the Freeman factors constitute the appropriate test for analyzing cruel or unusual punishment challenges under § 9 of the Kansas Constitution Bill of Rights. See Ross, 295 Kan. at 426. No one factor controls, although one factor may weigh so heavily that it directs the final outcome. State v. Mossman, 294 Kan. 901, 908, 281 P.3d 153 (2012).
Under the first Freeman factor, a court should consider the nature of the offense and the character of the offender, giving particular regard to the degree of danger to society. In his motion to the district court regarding the constitutionality of lifetime postrelease supervision and at the sentencing hearing, Perkins alleged facts relevant to this factor, but the district court found that it was limited to considering facts alleged at the plea hearing. As stated above, neither Perkins nor the State alleged or proffered any underlying facts of the conviction at the plea hearing; Perkins simply agreed that if the case went before a judge or jury, the factfinder could find beyond a reasonable doubt that he committed indecent liberties with a child. As a result, the district court made almost no findings at the sentencing hearing under the first Freeman factor.
However, Perkins did not object to the district court's insufficient findings at the sentencing hearing, nor did he subsequently file a Rule 165 motion or otherwise ask the district court to make further factual findings. Our Supreme Court has stated that “a defendant who wishes to appeal on the basis of a constitutional challenge to a sentencing statute must ensure the findings and conclusions by the district judge are sufficient to support appellate argument, by filing of a motion invoking the judge's duty under Rule 165, if necessary.” State v. Seward, 289 Kan. 715, 721, 217 P.3d 443 (2009). Because Perkins failed to challenge the insufficiency of the district court's findings, he may not complain of the lack of findings on appeal. Additionally, as the State points out, even on appeal Perkins fails to explain which facts regarding the nature of the offense and Perkins' character should have been considered by the district court. Therefore, his challenge to the district court's analysis under the first Freeman factor is deemed to be waived. See State v. Cameron, 294 Kan. 884, 892, 281 P.3d 143 (2012) (“Cameron's failure to adequately brief the issue constitutes a waiver of any arguments regarding the first Freeman factor. [Citation omitted.]”).
The second Freeman factor requires “[a] comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses.” Freeman, 223 Kan. at 367. If more serious crimes are punished less severely, the challenged penalty is to that extent suspect. 223 Kan. at 367. Perkins argued to the district court, as he does on appeal, that there are more serious offenses—including second-degree murder, aggravated arson, terrorism and illegal use of weapons of mass destruction, and aggravated kidnapping—which Kansas punishes less severely than he was punished here. Perkins emphasizes that all of these crimes have higher severity-level ranking than indecent liberties with a child but result in 36 months' postrelease supervision, while his crime of conviction requires lifetime postrelease supervision. The State correctly notes that our Supreme Court has previously rejected this argument in Mossman and Cameron.
In Mossman, our Supreme Court rejected Mossman's attempt to focus analysis under the second Freeman factor on the length of postrelease supervision; the court instead looked to the total length of the sentence, including actual incarceration. 294 Kan. at 912–13. The Mossman court noted that while Mossman's overall sentence may be longer than that given a convicted second-degree murderer, Mossman had the opportunity to serve most of his sentence in the less-restrictive environment of postrelease supervision, assuming it is not revoked. 294 Kan. at 917. The court reached the same result in Cameron. 294 Kan. at 893. Although Perkins devotes two pages of his brief to summarizing Mossman, he does not draw any material distinctions between his situation and that in Mossman. Thus, the Mossman and Cameron rationale applies here as well.
Perkins additionally argues that lifetime postrelease supervision is harsher punishment than the lifetime parole term given offenders convicted of capital murder, first-degree murder, felony murder, or Jessica's Law offenses involving sexual contact with children under 14 years of age. Specifically, Perkins asserts that a convicted parolee is treated “more leniently” than one on postrelease supervision because if a parolee violates his or her parole and is sent to prison, he or she can become eligible for release from incarceration, whereas if a person on lifetime postrelease supervision is sent to prison for a new conviction, he or she must remain incarcerated for life. The Mossman court also rejected this argument, indicating that the consequences for violating postrelease supervision are distinct from the issue of whether lifetime postrelease supervision is unconstitutionally disproportionate. See 294 Kan. at 914–17.
Under the Mossman rationale, Perkins' total sentence is longer than the potential sentences given for the higher-level crimes he lists. But his period of incarceration is shorter, and lifetime postrelease supervision is a lesser restriction on freedom than actual incarceration. If a court may not consider the consequences of revocation of lifetime postrelease supervision as compared to revocation of lifetime parole, then the second Freeman factor weighs in favor of the State, as Perkins' sentence is not grossly disproportionate when considered in relation to punishment for more serious offenses.
Finally, under the third Freeman factor, courts compare the punishment imposed with punishments that other jurisdictions impose for the same offense. Freeman, 223 Kan. at 367. Perkins asserts that Kansas' punishment is more severe because most states do not have lifetime postrelease supervision, leave the imposition of lifetime postrelease supervision to the discretion of the sentencing authority, allow for release from lifetime postrelease supervision, or reserve it for repeat offenders. Again, the State points out that similar arguments were rejected by our Supreme Court in Mossman and Cameron. In Mossman, our Supreme Court stated:
“[L]ess 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 [aggravated indecent liberties with a child], 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.
In Cameron, where the offense of conviction was aggravated indecent solicitation of a child, our Supreme Court followed the same rationale, finding that mandatory lifetime postrelease supervision was proportionate, even when considering that only a minority of states impose a similar punishment. 294 Kan. at 894. Our Supreme Court has reaffirmed its analysis on this factor, declining to further address the factor where the appellant did not offer new arguments to invite reconsideration. See Ross, 295 Kan. at 428. Likewise, Perkins does not assert any new argument as to the third factor; therefore, it weighs in favor of the State as well.
In summary, Perkins waived argument on the first Freeman factor, and the remaining two factors weigh in favor of the State. Thus, we conclude the district court did not err in finding that the imposition of mandatory lifetime postrelease supervision was not disproportionate as applied to Perkins' case and thus did not constitute cruel or unusual punishment under § 9 of the Kansas Constitution Bill of Rights.
Eighth Amendment to the United States Constitution
The Eighth Amendment to the United States Constitution, made applicable to states through the Fourteenth Amendment, states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” There are two general classifications of challenges to punishment as cruel and unusual under the Eighth Amendment: case-specific challenges and categorical challenges. See Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 2021–23, 176 L.Ed.2d 825 (2010).
A case-specific challenge claims that the length of a term-of-years sentence, given all relevant circumstances in a particular case, is grossly disproportionate. 130 S.Ct. at 2021. When considering whether a term-of-years sentence is grossly disproportionate to the crime and therefore violates the Eighth Amendment, a court begins by comparing the gravity of the offense with the severity of the sentence. 130 S.Ct. at 2022. If this threshold comparison “ ‘leads to an inference of gross disproportionality,” ’ then the court compares the sentence with sentences received by other offenders in the same jurisdiction and imposed for the same crime in other jurisdictions. 130 S.Ct. at 2022.
The United States Supreme Court has also explained the analysis of a categorical challenge under the Eighth Amendment:
“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.]” 130 S.Ct. at 2022.
As the State points out, although Perkins contends summarily that “his postrelease supervision constitutes cruel and unusual punishment ... under both the ‘proportionality’ analysis and the ‘categorical’ analysis” and sets out the tests for both, he fails to support this contention with analysis or other argument. Perkins merely reiterates his assertion, discussed above, that his situation is distinguishable from Mossman and Cameron because “the facts of his crime are minimal, involving only the lewd fondling or touching of a child between the ages of 14 and 16.” He also asserts again the arguments rejected in Mossman and Cameron that his sentence is disproportionate compared to similar crimes in other jurisdictions and compared to the punishments for more serious crimes in Kansas. Perkins does not provide any further or more specific argument on his Eighth Amendment claims. A point raised incidentally in a brief and not argued therein is deemed abandoned. State v. Anderson, 291 Kan. 849, 858, 249 P.3d 425 (2011).
Perkins spends the remainder of his brief discussing State v. Proctor, 47 Kan.App.2d 889, 280 P.3d 839 (2012), petition for rev. filed August 3, 2012. In Proctor, a panel of this court found lifetime postrelease supervision unconstitutional under the facts of that case. Proctor pled guilty to one count of aggravated indecent solicitation of a child and two counts of lewd and lascivious behavior and, because he had no criminal history, the district court sentenced him to probation with an underlying prison sentence followed by lifetime postrelease supervision. 47 Kan.App.2d at 890–92. Although Proctor was on probation at the time this court heard oral argument, the court noted the possibility that Proctor could violate his probation, serve his prison term, be subject to lifetime postrelease supervision upon his release from prison, commit a nonviolent felony, and have to spend the rest of his life in prison. 47 Kan.App.2d at 896–97. The court stated: “For Proctor, a man in his early 20's, the statutory sentencing scheme could put him behind bars for 50 years if he were to shoplift a $1,000 ring or computer or to write a bad check for them.” 47 Kan.App.2d at 889. The court found that the punishment was grossly disproportionate and violated the prohibitions against cruel and/or unusual punishment found in § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution. 47 Kan.App.2d at 938–42.
Perkins asks this court to follow the Proctor rationale. As the State points out, our Supreme Court issued its opinion in Mossman 3 weeks after this court's decision in Proctor. As stated above, Mossman rejected the argument that the potential for future lifetime imprisonment renders lifetime postrelease supervision unconstitutional. See Mossman, 294 Kan. at 914–17. Although the petition for review in Proctor is still pending, there is no indication from our Supreme Court that it is changing its position in Mossman. 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). Accordingly, we reject Perkins' challenge under the Eighth Amendment.
Affirmed.