Opinion
No. 111,308.
2014-10-10
STATE of Kansas, Appellee, v. Clifford A. NICHOLSON, Jr., Appellant.
Appeal from Osage District Court; Phillip M. Fromme, Judge.Submitted for summary disposition pursuant to K.S.A, 2013 Supp. 21–6820(g) and (h).
Appeal from Osage District Court; Phillip M. Fromme, Judge.
Submitted for summary disposition pursuant to K.S.A, 2013 Supp. 21–6820(g) and (h). Before HILL, P.J., STEGALL, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Clifford A. Nicholson, Jr., pled no contest to rape, a severity level 1 person felony, and to sexual exploitation of a child, a severity level 5 person felony. The State provided a factual basis for the pleas. The court accepted the pleas and found Nicholson guilty of the offenses. The district court sentenced Nicholson to imprisonment for a total of 187 months followed by lifetime postrelease supervision.
Each of Nicholson's offenses of conviction constitutes a “sexually violent crime” and is listed as such in K.S.A.2013 Supp. 22–3717(d)(5). Pursuant to K.S.A.2013 Supp. 22–3717(d)(l)(G), “persons convicted of a sexually violent crime committed on or after July 1, 2006, who are released from prison, shall be released to a mandatory period of postrelease supervision for the duration of the person's natural life.”
Nicholson now appeals, but only from that part of his sentence that requires lifetime postrelease supervision. He argues, for the first time on appeal, that lifetime postrelease supervision constitutes cruel and unusual punishment in violation of the prohibitions in the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights. We granted Nicholson's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2013 Kan. Ct. R. Annot. 63). In that motion, Nicholson acknowledges that he did not raise in the district court the constitutional challenges he now asks us to consider.
In State v. Naputi, 293 Kan. 55, 260 P.3d 86 (2011), Naputi invoked the same constitutional provisions and claimed for the first time on appeal that lifetime postrelease supervision constituted cruel and unusual punishment. Our Supreme Court specifically held that Naputi had failed to preserve his constitutional issues for appeal. It refused to consider Naputi's claims, reiterating its issue preservation rule for such challenges: “We have repeatedly stated that the issue of cruel and/or unusual punishment will not be reviewed for the first time on appeal because it requires the district court's findings upon the three-part test established in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978). [Citations omitted].” Naputi, 293 Kan. at 67, 260 P.3d 86.
Our Supreme Court reached a similar conclusion in State v. Roberts, 293 Kan. 1093, 272 P.3d 24 (2012). Although Roberts had not raised his constitutional challenges in the district court, he asked the Supreme Court to remand his case so he could, after all, make his argument that lifetime postrelease supervision was cruel and unusual punishment. The Court denied Roberts' request. It reiterated its rule that such an argument could not be raised for the first time on appeal, and stated: “[W]e decline to remand the case to the district court to make [the Freeman ] findings now in the absence of any effort below to raise this claim.” Roberts, 293 Kan. at 1097, 272 P.3d 24.
Nicholson, like Naputi and Roberts, did not advance his constitutional challenges in the district court. We have no testimony or evidence in the record regarding his claims of cruel and unusual punishment. Because there was no constitutional challenge before it, the district court made no findings on Nicholson's current claims. There is simply nothing in the record upon which we can conduct a Freeman review. See State v. Freeman, 223 Kan. 362, 367, 571 P.2d 950 (1978).
We note, only in passing, that Naputi and Roberts were sentenced to lifetime postrelease supervision as required under their off-grid Jessica's Law sentences. Here, the district court imposed lifetime supervision because Nicholson had been convicted of on-grid sexually violent crimes. That distinction makes no difference to our analysis here, since we are deciding this case based only on the narrow principles of issue preservation. Nicholson has failed to preserve for appeal his claim that his sentence to lifetime postrelease supervision subjects him to cruel and unusual punishment.
Appeal dismissed.