Opinion
No. 105,082.
2012-07-27
STATE of Kansas, Appellee, v. John M. COYNE, Appellant.
Appeal from Kiowa District Court; E. Leigh Hood, Judge. Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Gaten T. Wood, special prosecutor, and Derek Schmidt, attorney general, for appellee.
Appeal from Kiowa District Court; E. Leigh Hood, Judge.
Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Gaten T. Wood, special prosecutor, and Derek Schmidt, attorney general, for appellee.
Before GREENE, C.J., MALONE and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
John M. Coyne appeals his sentence after pleading guilty to attempted aggravated indecent liberties with a child, arguing (1) the district court erred in believing it was not permitted to impose a downward dispositional departure; (2) imposition of lifetime postrelease supervision is a violation of the Eighth Amendment to the United States Constitution; (3) lifetime parole and electronic monitoring were an illegal sentence. We conclude there was no error in the imposition of 155 months' imprisonment, and we conclude that Coyne failed to preserve his constitutional challenge. The State has conceded the lifetime parole and electronic monitoring were error and should be vacated. Thus, we affirm in part and vacate in part.
On September 11, 2009, the State charged Coyne with two counts of rape. On January 8, 2010, Coyne entered into a plea agreement and pled guilty to one count of attempted aggravated indecent liberties with a child in violation of K.S.A. 21–3504(a)(3)(A) and K.S.A. 21–3301. Under Jessica's Law, K.S.A.2009 Supp. 21–4643(a), the prescribed sentence for Coyne's conviction was lifetime imprisonment with a mandatory minimum 25 years' imprisonment. Before sentencing, Coyne filed a motion for durational and/or dispositional departure. Coyne asked for two departures-a durational departure from lifetime imprisonment to the grid box of the Kansas Sentencing Guidelines Act and, in addition, a dispositional departure from the grid box to a sentence of probation.
Coyne was sentenced on April 7, 2010. The district court granted Coyne's request for a departure from sentence prescribed by Jessica's Law and sentenced Coyne to 155 months' imprisonment. But the district court stated that it lacked authority to consider Coyne's request for a dispositional departure to a sentence of probation. It cited K.S.A.2009 Supp. 21–4719 as prohibiting it from granting a downward dispositional departure because Coyne's conviction of attempted aggravated indecent liberties with a child was for a crime of extreme sexual violence. See K.S.A. 21–4716(c)(2)(F)(i)(c). This statute states that a district court “shall not impose a downward dispositional departure sentence for any crime of extreme sexual violence.” K.S.A.2009 Supp. 21–4719(a). It also states that district courts “shall not impose a downward durational departure sentence for any crime of extreme sexual violence ... to less than 50% of the center of the range of the sentence for such crime.” K.S.A.2009 Supp. 21–4719(a).
But the district court did not stop there. It went on to note that it would not have granted Coyne's request for probation even if it felt it had the power to do so. In addition to the 155 months' imprisonment, Coyne was placed on lifetime postrelease supervision and lifetime parole with electronic monitoring.
Did the District Court Err in Concluding It Had No Authority to Grant a Dispositional Departure?
Coyne initially argues that the district court erred because it erroneously believed that it had no authority to grant a dispositional departure. Normally, we lack jurisdiction to hear a presumptive sentence appeal pursuant to K.S.A. 21–4721(c). Although this appeal as a whole regards a presumptive sentence, Coyne challenges the court's statement that it lacked authority to dispositionally depart—not the presumptive sentence itself. Thus, the court has jurisdiction to hear this issue under State v. Cisneros, 42 Kan.App.2d 376, 379, 212 P.3d 246 (2009) (holding an appellate court has the authority to hear arguments that the district court was mistaken as to its statutory authority in denying further departure on a presumptive sentence). Our Supreme Court has discussed Cisneros favorably despite concluding that it should be distinguished. State v. Huerta, 291 Kan. 831, 840, 247 P.3d 1043 (2011).
In sentencing Coyne, the district judge commented:
“I do not believe that the Court has the ability to depart further.
“And, I guess, I would tell you, Mr. Coyne, that even if I felt I did, with all the evidence before me, and particularly knowing that there are other victims, I would not grant you probation on this case.” (Emphasis added.)
Given the judge's statements, we need not resolve the rather difficult question of whether a dispositional departure was permitted here. The judge explained that Coyne would not receive a dispositional departure even if one was permitted because of “the evidence before me” and “knowing there are other victims.” Thus, the judge's comment as to his authority was of no legal significance, and Coyne's sentence of 155 months' imprisonment must be affirmed.
Does a Sentence of Lifetime Postrelease Supervision Violate the State or Federal Constitution?
Coyne next challenges the constitutionality of the lifetime postrelease supervision aspect of his sentence. He argues it is cruel and unusual in violation of the Eighth Amendment to the United States Constitution and disproportionate to the crime of conviction contrary to § 9 of the Kansas Constitution Bill of Rights.
Generally, issues not raised before the district court cannot be raised on appeal. State v. Warledo, 286 Kan. 927, 190 P.3d 937 (2008). Constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. See State v. Roberts, 293 Kan. 1093, 1096, 272 P.3d 24 (2012); State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010); State v. Ortega–Cadelan, 287 Kan. 157, 159–61, 194 P.3d 1195 (2008).
Having not raised this constitutional claim prior to or during his sentencing, Coyne failed to preserve this issue on direct appeal. Our Supreme Court has consistently sustained this procedural bar, especially in cases—like this one—which require factual findings to analyze such a statute's constitutionality. See Roberts, 293 Kan. at 1096. Therefore, we decline to address Coyne's constitutional challenge.
Was the Imposition of Lifetime Parole and Lifetime Electronic Monitoring Beyond the District Court's Authority?
The State has conceded that the imposition of lifetime parole and lifetime electronic monitoring were beyond the district court's authority and should be vacated. We agree.
With regard to imposition of lifetime parole, our Supreme Court has stated in State v. Harsh, 293 Kan. 585, 588–89, 265 P.3d 1161 (2011), that postrelease supervision and parole have two separate meanings—parole is the release of a prisoner before his or her sentence expires, and postrelease supervision is the supervision of a prisoner after his or her sentence expires and he or she is released into the community. Parole has traditionally applied only to off-grid crimes, and postrelease supervision has traditionally applied only to grid crimes. Thus, lifetime parole was inapplicable here, and its imposition must be vacated.
With regard to imposition of lifetime electronic monitoring, our Supreme Court has stated such power lies exclusively with the Kansas Parole Board. See K.S.A.2009 Supp. 22–3717(u); State v. Chavez, 292 Kan. 464, Syl. ¶ 3, 254 P.3d 539 (2011); State v. Jolly, 291 Kan. 842, Syl. ¶¶ 5–6, 249 P.3d 421 (2011). Moreover, Coyne is statutorily ineligible for electronic monitoring because he was not subject to parole, and the imposition of lifetime monitoring must also be vacated.
In summary and conclusion, we affirm that aspect of Coyne's sentence imposing 155 months' imprisonment, we refuse to address Coyne's constitutional challenge, and we vacate those aspects of his sentence imposing lifetime parole and lifetime electronic monitoring.
Affirmed in part and vacated in part.