Opinion
No. 108,061.
2013-08-9
STATE of Kansas, Appellee, v. Henry PETERSEN–BEARD, Appellant.
Appeal from Saline District Court; Rene S. Young, Judge. Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Christina Trochek, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Saline District Court; Rene S. Young, Judge.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Christina Trochek, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., ATCHESON, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Henry Petersen–Beard appeals the portion of his sentence requiring lifetime registration following his conviction of rape. Petersen–Beard contends that lifetime registration under the Kansas Offender Registration Act (KORA), K.S.A. 22–4901 et seq. , is cruel and unusual punishment and, as such, violates § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution. Given that the Kansas Supreme Court has rejected the characterization of registration under KORA as punishment, we find that the state and federal constitutional prohibitions on cruel and unusual punishment have no bearing on KORA's registration requirements. In the alternative, we agree with the district court's conclusion that lifetime registration is constitutionally permissible under the facts of this case.
On January 18, 2012, pursuant to a plea agreement, Petersen–Beard pled guilty to one count of rape, in violation of K.S.A.2010 Supp. 21–3502(a)(2), an off-grid person felony. Prior to sentencing, Petersen–Beard filed a motion for a departure to the sentencing guidelines grid and a subsequent downward durational departure from the presumptive guidelines sentence; he also filed a motion for a dispositional departure to probation. Additionally, Petersen–Beard filed a motion to declare KORA's requirement of lifetime registration unconstitutional under § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution. The State responded to the motion, noting that the Kansas Supreme Court had previously upheld offender registration requirements as constitutional. On March 16, 2012, the district court granted Petersen–Beard's motion for a durational departure and sentenced him to 78 months' imprisonment, with lifetime postrelease supervision and lifetime registration.
On March 20, 2012, realizing it had failed to dispose of the motion at sentencing, the district court held a hearing on the motion to declare lifetime registration unconstitutional. Petersen–Beard adopted the arguments made in his motion to declare the life sentence unconstitutional, including analysis and argument under the Freeman factors, which are used to determine whether a sentence constitutes cruel and unusual punishment. See State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978). The State argued that the Kansas Supreme Court had ruled that KORA's registration and notification requirements did not constitute cruel and unusual punishment. The State also argued that application of the Freeman factors weighed in favor of upholding lifetime registration.
The district court discussed the Freeman factors and found that lifetime registration was constitutionally permissible. Specifically, the court found that lifetime registration is not cruel and unusual, arbitrary, or grossly disproportionate to the crime committed. Thus, the court denied Petersen–Beard's motion. Petersen–Beard appealed.
The Eighth Amendment, made applicable to the states by the Fourteenth Amendment to the United States Constitution, states that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Section 9 of the Kansas Constitution Bill of Rights similarly mandates that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.” A statute's constitutionality is a question of law over which this court has unlimited review. See State v. Gaona, 293 Kan. 930, 957, 270 P.3d 1165 (2012). Moreover, Kansas appellate courts presume statutes are constitutional and must resolve all doubts in favor of a statute's validity. State v. Britt, 295 Kan. 1018, 1031, 287 P.3d 905 (2012).
On appeal, as in the district court, both parties argue the ways in which consideration of the Freeman factors should guide our analysis. As a threshold matter, however, the State argues that Petersen–Beard's assertion of unconstitutionality necessarily fails because offender registration is not punitive and therefore cannot constitute cruel or unusual punishment. We need not address an argument that a sentence constitutes cruel and unusual punishment if the challenged order is not punishment. See In re Care & Treatment of Hay, 263 Kan. 822, 834, 953 P.2d 666 (1998) (“[T]here exists no basis for Hay's argument that the [Kansas Sexually Violent Predator] Act violates the prohibition against cruel and unusual punishment where commitment proceedings under the Act have been clearly held to be civil in nature, not criminal or punitive.”).
To support its argument that KORA's registration requirements are not punishment, the State notes that the United States Supreme Court has held that Alaska's Sex Offender Registration Act, which is very similar to KORA, was nonpunitive and therefore retroactive application of the Act could not violate the Ex Post Facto Clause. See Smith v. Doe, 538 U.S. 84, 105–106, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003); see also In re E.L.W., No. 106,241, 2012 WL 686861, at *4 (Kan.App.2012) (unpublished opinion) (noting similarities between the Alaska and Kansas statutory schemes), rev. denied 297 Kan. –––– (May 20, 2013). Further, the State points out that at least one federal court has relied on Doe to find that the federal Sex Offender Registration and Notification Act (SORNA) is nonpunitive in nature and thus does not implicate the Ex Post Facto Clause. See United States v. W.B.H., 664 F.3d 848, 852–60 (11th Cir.2011).
The Kansas Supreme Court has also addressed the issue. In State v. Myers, 260 Kan. 669, 671, 923 P.2d 1024 (1996), cert. denied521 U.S. 1118 (1997), our Supreme Court examined the KSORA to determine whether its registration and public disclosure provisions violated the Ex Post Facto Clause of the United States Constitution when applied to an offender who committed his underlying crime prior to the date on which KSORA took effect. Although the Myers court found that the public disclosure provision, as applied, was prohibited ex post facto punishment, the court also specifically stated, “We hold that KSORA's registration requirement does not impose punishment; thus, our ex post facto inquiry as to registration ends.” 260 Kan. at 671, 695; see also State v. Weis, 47 Kan.App.2d 703, 718, 280 P.3d 805 (2012) (“If we were to consider [KORA's] registration requirements, we would interpret them as part of the regulatory scheme and not as punishment.”), petition for rev. filed July 16, 2012. The Myers court's holding on the punitive nature of the public disclosure provision of KSORA arguably has been undermined by the United States Supreme Court's decision in Doe, but that does not affect Petersen–Beard's argument concerning the registration requirement. See State v. Brown, No. 107,512, 2013 WL 2395319, at *2 (Kan.App.2013) (unpublished opinion) (discussing Doe 's effect on Myers ), petition for rev. filed June 24, 2013.
Petersen–Beard challenges only the registration requirement as cruel and unusual punishment. Because our Supreme Court has stated that the registration requirement does not impose punishment, his argument necessarily fails. The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its prior position. See State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. –––– (May 4, 2012). In light of this direction and the United States Supreme Court's determination in Doe that a similar offender registry scheme was nonpunitive in nature, KORA's registration requirement is not punishment and thus cannot constitute cruel and unusual punishment.
But even if KORA's registration requirement is considered as punitive in nature, we agree with the district court's conclusion that lifetime registration is constitutionally permissible under the facts of this case. In determining whether a sentence is cruel or unusual, a district court must make both legal and factual inquiries. State v. Woodard, 294 Kan. 717, 720, 280 P.3d 203 (2012). These inquiries invoke a bifurcated standard of review: without reweighing the evidence, the appellate court reviews the factual underpinnings of the district court's findings under a substantial competent evidence standard, and the district court's ultimate legal conclusion drawn from those facts is reviewed de novo. 294 Kan. at 720.
In Freeman, 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. [Citations omitted.]” 223 Kan. at 367. The Freeman 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 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.” 223 Kan. at 367.
Here, the district court carefully considered the three Freeman factors in its analysis. Under the first Freeman factor, i.e., the nature of the offense and the character of the offender, the district court found that Petersen–Beard was 19 years old at the time of the offense and he had met the 13–year–old victim on Facebook. The district court also found that Petersen–Beard knew the victim's age and he knew what he was doing was wrong. The district court specifically found from the victim impact statement that the rape caused “an extreme change” in the victim's behavior and that the victim had entered into counseling as a result of the offense. The district court found that Petersen–Beard was a dangerous offender and that lifetime offender registration served a legitimate public safety interest by monitoring convicted sex offenders on a regular basis.
Under the second Freeman factor, i.e., a comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses, Petersen–Beard points out that certain homicide convictions in Kansas result in shorter offender registration periods than a rape conviction. But the Kansas Supreme Court has previously minimized the significance of comparing the punishment in Kansas for sex offenses with the punishment in Kansas for homicide convictions:
“The fact that the penalty for certain categories of homicide may be less severe than the penalties for other, nonhomicide crimes does not automatically render the penalties for the nonhomicide crimes unconstitutional. There is no strict linear order of criminal activity that ranks all homicides as the most serious crimes and all nonhomicide crimes as less serious, with the corresponding penalties necessarily ranking in diminishing durations of imprisonment. Woodard, 294 Kan. at 723.
Petersen–Beard failed to present any argument in district court under the third Freeman factor, i.e., a comparison of the penalty with punishments in other jurisdictions for the same offense. But in finding that Petersen–Beard's lifetime registration was constitutionally permissible, the district court specifically found “that there are a number of other states that require lifetime registration” for the offense of rape. Petersen–Beard does not challenge this finding on appeal.
We conclude the district court's findings under the Freeman factors were supported by substantial competent evidence and support the district court's conclusion that lifetime registration is constitutionally permissible under the facts of this case. The district court's lifetime registration order was not so disproportionate to Petersen–Beard's rape conviction “that it shocks the conscience and offends fundamental notions of human dignity” such that it violates § 9 of the Kansas Constitution Bill of Rights. See Freeman, 223 Kan. at 367. Although Petersen–Beard summarily asserts that lifetime registration also violates “federal constitutional provisions,” he makes no separate argument to support this assertion other than analyzing the Freeman factors. Failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. State v. Berriozabal, 291 Kan. 568, 594, 243 P .3d 352 (2010). An issue not briefed by the appellant is deemed waived and abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011).
Affirmed.