Opinion
No. 106,252.
2013-10-18
STATE of Kansas, Appellee, v. Cutberto SANTOY–MEDINA, Appellant.
Appeal from Saline District Court; Jerome P. Hellmer, Judge. Heather Cessna, of Kansas Appellate Defender Office, for appellant. Christina Trocheck, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Saline District Court; Jerome P. Hellmer, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Christina Trocheck, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON and HILL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Cutberto Santoy–Medina appeals the portion of his sentence imposing lifetime postrelease supervision for his convictions of one count of aggravated indecent solicitation of a child and one count of criminal restraint. Santoy–Medina claims that his sentence of lifetime postrelease supervision constitutes cruel and/or unusual punishment in violation of § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution. He also claims that the district court violated his constitutional rights by sentencing him to the aggravated number in the grid box without proving the aggravating factors to a jury beyond a reasonable doubt. We reject Santoy–Medina's constitutional claims and affirm the district court's judgment.
On February 10, 2011, pursuant to a plea agreement, Santoy–Medina pled guilty to one count of aggravated indecent solicitation of a child, a severity level 5 person felony, and one count of criminal restraint, a class A person misdemeanor. According to the factual basis for the guilty plea, Santoy–Medina asked 9–year–old V.H. to watch his 1–year–old son in front of Santoy–Medina's residence. While V.H. was watching Santoy–Medina's son, Santoy–Medina asked her to change the child's diaper. V.H. had changed a diaper numerous times in the past, and she took the child inside the house and into Santoy–Medina's bedroom to change him. Santoy–Medina followed V.H. into the bedroom, came up behind her, and pulled down her pants. V.H. then heard Santoy–Medina unzip his pants. V.H. pulled up her pants and went to the bedroom door, which was locked. V.H. unlocked the door and ran home and told her mother what had happened.
Prior to sentencing, Santoy–Medina filed a motion arguing that lifetime postrelease supervision constitutes cruel and unusual punishment as prohibited by § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution. The State filed a response in opposition to the motion.
On April 12, 2011, the district court sentenced Santoy–Medina to a controlling term of 34 months' imprisonment including lifetime postrelease supervision and 10 years of offender registration. Santoy–Medina argued at sentencing that lifetime postrelease supervision was unconstitutional. The district court addressed the issue at length and found the sentence constitutionally permissible. Santoy–Medina timely appealed his sentence.
Claim Under Kansas Constitution
Santoy–Medina first argues that the imposition of lifetime postrelease supervision as applied to his case is cruel or unusual punishment in violation of § 9 of the Kansas Constitution Bill of Rights. The State replies that lifetime postrelease supervision is not unconstitutional and that this court should uphold the sentence.
K.S.A.2010 Supp. 22–3717(d)(1)(G) states that “persons convicted of a sexually violent crime committed on or after July 1, 2006, and who are released from prison, shall be released to a mandatory period of postrelease supervision for the duration of the person's natural life.” K.S.A.2010 Supp. 22–3717(d)(2)(G) establishes that aggravated indecent solicitation of a child, one of Santoy–Medina's crimes of conviction, is a sexually violent crime. While on lifetime postrelease supervision, an offender must comply with the conditions of his or her release. If a violation results from a conviction of a new misdemeanor, the offender may be required to serve the entire remaining balance of postrelease supervision, and if a violation results from a conviction of a new felony, the offender “shall serve the entire remaining balance of the period of postrelease supervision.” K.S.A.2010 Supp. 75–5217(c)–(d). Thus, an offender subject to lifetime postrelease supervision is subject to confinement for the rest of his or her life without the possibility for release if supervision is revoked as a result of a new conviction. This is true even if that conviction does not result in the imposition of a new term of imprisonment. K.S.A.2010 Supp. 75–5217(c).
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 makes both legal and factual determinations. An appellate court applies a bifurcated standard of review. All 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. State v. Ross, 295 Kan. 424, 425–26, 284 P.3d 309 (2012). “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.]” Ross, 295 Kan. at 426.
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. [Citations omitted.]” 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.
Our Supreme Court recently affirmed that the Freeman factors constitute the appropriate test for analyzing length-of-sentence cruel or unusual punishment challenges brought under § 9 of the Kansas Constitution Bill of Rights. See State v. Toahty–Harvey, 207 Kan. 101, 106, 298 P.3d 338 (2013). 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).
First Freeman Factor
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. Freeman, 223 Kan. at 367. “[R]elevant 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.” 223 Kan. at 367.
The district judge specifically addressed this factor and made the following factual findings:
“This court cannot find that this outcome would shock the conscience of the court for the violation of a child's innocence in this case; it is not shocking that the defendant would have these responsibilities to society in this regard. It is not a disproportionate sentence in this regard.... The nature of the offense is a violation of a child, even though there isn't penetration or other physical contact. The stark violation, the door being locked behind this child, the clothing being removed from her person and exposing her, the zipper being unzipped, those sounds are etched in this child's mind.”
On appeal, Santoy–Medina does not challenge the district court's factual findings; rather, he argues that the nature of the offense and the nature of the offender in his case do not merit a lifetime period of postrelease supervision. Regarding the nature of the offense, Santoy–Medina points out that the crime of aggravated indecent solicitation of a child does not require sexual touching and that his actions did not involve penetration, fondling, or any physical sexual contact of the victim's genitals of any kind. Regarding the nature of the offender, Santoy–Medina states that he has no prior violent criminal record and no prior sexually motivated or sexually violent criminal history. The State counters that Santoy–Medina is a sexually violent offender who “presents a high degree of danger to society.” Citing our Supreme Court's decision in Mossman, 294 Kan. 901, the State argues that sexual crimes against minors are considered particularly heinous and that the risk of recidivism among convicted sex offenders is “ ‘frightening and high.’ “
The district court acknowledged that Santoy–Medina had no prior criminal history of sexual deviation but stated that Santoy–Medina had crossed the line with his actions in this case. The judge stated that he would like to draw a distinction between simply terrorizing a child, and touching and violating a child, but concluded the two are synonymous. Finally, the judge pointed out the inconsistency of Santoy–Medina's guilty plea and his statements at the sentencing hearing that he was intoxicated on the day at issue and could not remember what happened. This court does not reweigh evidence on appeal; there is substantial competent evidence to support the district court's findings on the first Freeman factor, and considerations under the first factor support the imposition of lifetime postrelease supervision.
Second Freeman Factor
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. Santoy–Medina argued in his motion concerning postrelease supervision that there are many other more serious offenses—including second-degree murder, aggravated kidnapping, and electronic solicitation of a child—which carry sentences with shorter periods of postrelease supervision in Kansas than his crime of conviction. The district court addressed the second Freeman factor and stated: “[T]he court has reviewed [punishment imposed by the jurisdiction for more serious offenses] and this legislature has spoken on numerous occasions about sexual offenses and the court does not find that it is unusual or ... disproportionate in that regard.”
On appeal, Santoy–Medina asserts that there are various higher severity level crimes than aggravated indecent solicitation of a child which require significantly shorter terms of postrelease supervision. Santoy–Medina concludes that even more “shocking” than this apparent discrepancy is the fact that lifetime postrelease supervision is in many ways a harsher punishment than a lifetime parole term provided for many of these crimes. Santoy–Medina argues that while a parolee can become eligible for release from serving a parole violation in prison, one who violates his postrelease supervision may be required to serve the entire period of supervision with no possibility of release. However, our Supreme Court has previously rejected attempts to focus on the potential consequences of violating lifetime postrelease supervision, finding that such consequences are a separate issue from the question of disproportionality. See Mossman, 294 Kan. at 914–17.
Santoy–Medina lists numerous offenses he characterizes as more serious than his own crime of conviction that have shorter periods of postrelease supervision. The crimes include aggravated kidnapping, aggravated human trafficking, and aggravated robbery, all of which carry a 36–month postrelease supervision term. See K.S .A. 21–3421 (aggravated kidnapping is a severity level 1 person felony); K.S.A.2010 Supp. 21–3447 (aggravated trafficking is a severity level 1 person felony); K.S.A. 21–3427 (aggravated robbery is a severity level 3 person felony). Santoy–Medina concludes that under the second prong of the Freeman test, it “becomes clear” that a sentence of lifetime postrelease supervision for a severity level 5 sex offense is “woefully disproportionate” to the postrelease terms for most other serious crimes in Kansas.
Our Supreme Court, however, has rejected attempts under the second Freeman factor to focus on the length of postrelease supervision and instead has looked to the total length of the sentence, including actual incarceration. Mossman, 294 Kan. at 912–13. Furthermore, our Supreme Court explicitly compared a sentence for a sexually violent crime, including postrelease supervision, to the sentence for second-degree murder, including the 36–month postrelease supervision term, and held:
“[W]hile 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 relations to the first Freeman factor.’ [Citation omitted.]” State v. Cameron, 294 Kan. 884, 893, 281 P.3d 143 (2012).
Based on the Kansas Supreme Court's analysis in Mossman and Cameron, we find that the imposition of lifetime postrelease supervision for the crime of aggravated indecent solicitation of a child, a crime statutorily categorized as a sexually violent offense, is not grossly disproportionate to the sentence imposed for other, “more serious” offenses in Kansas, such as second-degree murder. Accordingly, considerations under the second Freeman factor support the imposition of lifetime postrelease supervision.
Third Freeman Factor
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. In his motion concerning postrelease supervision, Santoy–Medina compared Kansas' imposition of lifetime postrelease supervision to sentencing schemes used in other states, including some that impose shorter periods of postrelease supervision, some that impose lifetime supervision only after an offender commits a violation punishable as a separate criminal offense, and some that rely on parole schemes. The district court, in addressing the third Freeman factor, found that each jurisdiction has a responsibility to its citizens and concluded that Kansas was not disproportionate in imposing lifetime postrelease supervision in Santoy–Medina's case.
On appeal, Santoy–Medina argues that Kansas is one of only two states to impose a mandatory term of lifetime postrelease supervision in crimes that do not require sexual touching or penetration. Our Supreme Court addressed this argument in Mossman, finding:
“[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.
Our Supreme Court followed the same rationale in Cameron, where the offense of conviction, as it is here, was aggravated indecent solicitation of a child. The court has since reaffirmed its analysis on this factor, declining to further address it where the appellant did not offer new arguments to invite reconsideration. Ross, 295 Kan. at 428.
In summary, the district court's imposition of lifetime postrelease supervision was not so disproportionate to Santoy–Medina's conviction “that it shocks the conscience and offends fundamental notions of human dignity.” See Freeman, 223 Kan. at 367. Thus, Santoy–Medina's sentence of lifetime postrelease supervision does not constitute cruel or unusual punishment in violation of § 9 of the Kansas Constitution Bill of Rights.
Claim Under Federal Constitution
Santoy–Medina also argues that the imposition of lifetime postrelease supervision as applied to his case is cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. The State replies that under an Eighth Amendment proportionality analysis, lifetime postrelease supervision for sexual offenders “is on firm ground.”
The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Santoy–Medina argues that lifetime postrelease supervision without the possibility of release or discharge is so disproportionate that it shocks the conscience and offends notions of human dignity in his specific case. The United States Supreme Court has found that “[t]he concept of proportionality is central to the Eighth Amendment to the United States Constitution. Embodied in the cruel and unusual punishments ban is the ‘precept of justice that punishment for crime should be graduated and proportioned to [the] offense.’ “ Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 2021, 176 L.Ed.2d 825 (2010).
Our Supreme Court looked to the United States Supreme Court's decision in Graham in laying its framework for analyzing Eighth Amendment cruel and unusual punishment claims:
“An Eighth Amendment challenge to a term-of-years sentence as disproportionate and therefore cruel and unusual falls into one of two general classifications. The first classification involves challenges that argue the term of years is grossly disproportionate given all the circumstances in a particular case. The second classification comprises cases in which the court implements the proportionality standard by certain categorical restrictions.”
“In conducting an Eighth Amendment analysis to determine whether a sentence for a term of years is grossly disproportionate for a particular defendant's crime, a court must begin by comparing the gravity of the offense and the severity of the sentence. This analysis can consider a particular offender's mental state and motive in committing the crime, the actual harm caused to the victim or to society by the offender's conduct, any prior criminal history, and a particular offender's propensity for violence. In the rare case in which this threshold comparison leads to an inference of gross disproportionality, the court should then compare the defendant's sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions. If this comparative analysis validates an initial judgment that the sentence is grossly disproportionate, the sentence is cruel and unusual....”
“In limited circumstances, a categorical analysis may apply to an Eighth Amendment cruel and unusual challenge. In considering a categorical challenge, a 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. 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, the court must determine in the exercise of its own independent judgment whether the punishment in question violates the United States Constitution. The judicial exercise of independent judgment requires consideration of the culpability of the category of offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question. In this inquiry the court also considers whether the challenged sentencing practice serves legitimate penological goals of retribution, deterrence, incapacitation, and rehabilitation.” State v. Gomez, 290 Kan. 858, Syl. ¶¶ 4–5, 7, 235 P.3d 1203 (2010).
In analyzing whether a sentence for a term of years is grossly disproportionate for a particular defendant's crime, the court must begin by comparing the gravity of the offense and the severity of the sentence. Gomez, 290 Kan. 858, Syl. ¶ 5. As part of this analysis, the court may consider a particular offender's mental state and motive in committing the crime, the actual harm caused to the victim or to society by the offender's conduct, any prior criminal history, and a particular offender's propensity for violence. 290 Kan. 858, Syl. ¶ 5.
Santoy–Medina's case-specific Eighth Amendment analysis on the gravity of his offense and severity of his sentence is combined with his § 9 analysis of the first Freeman factor. Thus, the district court's factual findings under the first Freeman factor are also relevant here as they relate to Santoy–Medina's mental state, his motive in committing the crime, and his prior criminal history. Additionally, the district court addressed the actual harm considered to the victim. Referring to the testimony of V.H.'s grandmother at the sentencing hearing, the district court noted that V.H. prays that she will not have bad dreams and she is fearful of being left alone in a room.
Again, this court does not reweigh evidence on appeal; there is substantial competent evidence to support the district court's finding that the gravity of Santoy–Medina's offense and severity of his sentence do not result in an inference of gross disproportionality. Because Santoy–Medina fails to satisfy the threshold test for determining whether a sentence is cruel and unusual punishment, further consideration of his case-specific Eighth Amendment claim is unnecessary.
Santoy–Medina also raises a categorical challenge to lifetime postrelease supervision. In order to analyze Santo–Medina's categorical claim, this court must first define the category to which its analysis should apply. Mossman, 294 Kan. at 927. Our Supreme Court has looked to the guidance of the United States Supreme Court in determining the scope of a categorical challenge. 294 Kan. at 928. In Graham, the United States Supreme Court stated that a category consists of two subsets; one considering the nature of the offense and the other considering the characteristics of the offender. 130 S.Ct. at 2022. A court must first examine a particular type of sentence as it applies to an entire class of offenders who have committed a range of crimes. 130 S.Ct. at 2022–23. In this case, Santoy–Medina attempts to narrowly define the category to which his analysis applies to persons convicted of aggravated indecent solicitation of a child whose crimes did not actually involve penetration or sexual touching.
The State objects to Santoy–Medina's classification, arguing that this category is so narrowly defined as to eliminate the difference between his case-specific and categorical challenges under the Eighth Amendment. The State draws parallels to Mossman, in which the defendant making a categorical challenge defined the relevant range of crimes as those involving sex with a child of 14 or 15 where the crime was committed without any element of force, coercion, prostitution, or pornography and the class of offenders as those offenders who had committed a first offense. 294 Kan. at 928. The Mossman court rejected that narrow categorization, stating that the United States Supreme Court had never refined the category—nature of the offense—to the extent proposed by the defendant. 294 Kan. at 928–29. The Mossman court concluded that the nature of the offense was aggravated indecent liberties with a child and the class of offenders consisted of first-time sex offenders. 294 Kan. at 928–29. Applying the same rationale in the case at hand, we categorize the nature of the offense as aggravated indecent solicitation of a child and the class of offenders as first-time sex offenders.
In a categorical challenge, a court must first consider 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. Gomez, 290 Kan. 858, Syl. ¶ 7. Santoy–Medina contends that upon a close examination of the nature of his offense, his crime “involved much less physically intrusive behavior than other, similarly punished acts.” He further argues that Kansas is one of only two states that impose a mandatory lifetime postrelease term for crimes that do not require sexual touching or penetration and for offenders with no prior convictions.
In State v. Barrera, No. 104,667, 2013 WL 517581 (Kan.App.2013) (unpublished opinion), this court noted that our Supreme Court and the Ninth Circuit Court of Appeals when considering a categorical challenge under the Eighth Amendment to a sentence of lifetime postrelease supervision imposed after a conviction of attempted rape:
“Our Supreme Court has adopted the Ninth Circuit Court of Appeals' position in United States v. Williams, 636 F.3d 1229, 1233 (9th Cir.), cert. denied––– U.S. ––––, 132 S.Ct. 188, 181 L.Ed.2d 96 (2011), in which the Ninth Circuit examined a categorical challenge to a sentence of lifetime postrelease supervision for a conviction of receipt of child pornography: “ ‘ “[O]bjective indicia” suggest that society is comfortable with lifetime sentences of supervised release for sex offenders, as such sentences are common.’ “ See Cameron, 294 Kan. at 897;Mossman, 294 Kan. at 929. In both Mossman and Cameron, our Supreme Court quoted this language and applied the Ninth Circuit's reasoning. Cameron, 294 Kan. at 897–98;Mossman, 294 Kan. at 929–30.
“Although both the Mossman and Cameron courts specifically identified the category at issue to be identical with the crime of conviction, the application of Williams to both Mossman and Cameron's cases means that our Supreme Court is truly analyzing the category even more broadly—as ‘sex offenses.’ This is the only way in which the three crimes at issue in the three cases—aggravated indecent liberties with a child, aggravated indecent solicitation of a child, and receipt of child pornography—can undergo identical analysis for a categorical proportionality challenge under the Eighth Amendment. Moreover, our Supreme Court considered that ‘several other states have adopted lifetime postrelease supervision for many, if not all, sexually violent crimes.’ Cameron, 294 Kan. at 897;Mossman, 294 Kan. at 930. This statement, identical in both opinions, reinforces the belief that the category of offense actually being considered was ‘sexually violent crimes' as a whole, not each sex crime individually.
“Here, Barrera was convicted of attempted rape, which is also a sexually violent crime. See KS.A.2011 Supp. 22–3717(d)(2). Therefore, the Williams analysis applies here as it did in Mossman and Cameron. As these three opinions note, objective indicia suggest that there is no national consensus against lifetime postrelease supervision for perpetrators of sexually violent crimes; rather, it seems to be a widespread phenomenon. Objective indicia indicate now, as in Mossman, Cameron, and Williams, that ‘society is comfortable with lifetime sentences of supervised release for sex offenders.’ Williams, 636 F.3d at 1233;Cameron, 294 Kan. at 897;Mossman, 294 Kan. at 929–30.” 2013 WL 517581, at *9.
Aggravated indecent solicitation of a child—Santoy-Medina's crime of conviction—is among the sex offenses discussed above in Barrera. Consistent with the analysis in Barrera, we conclude that there is not a national consensus against the sentencing of first time offenders convicted of aggravated indecent solicitation of a child to lifetime postrelease supervision.
The second step of the court's analysis must be 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. Gomez, 290 Kan. 858, Syl. ¶ 7. The court must determine, by exercising its own independent judgment, whether the punishment in question violates the United States Constitution. 290 Kan. 858, Syl. ¶ 7. This exercise of independent judgment requires consideration of the culpability of the category of offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question. 290 Kan. 858, Syl. ¶ 7. In this inquiry, the court also should consider whether the challenged sentencing practice serves legitimate penological goals of retribution, deterrence, incapacitation, and rehabilitation. 290 Kan. 858, Syl. ¶ 7.
Santoy–Medina acknowledges that the category into which he falls includes offenses committed against young children but asserts that this court must also consider that it “rates on the lowest end” of sexually violent crimes when it comes to the actual violence used to accomplish the crime and the mental and physical harm caused to the victim. Santoy–Medina recognizes that a sentence of lifetime postrelease supervision satisfies the legitimate goals of retribution, deterrence, and incapacitation. However, he argues that such a sentence “completely obliterates” the goal of rehabilitation because a simple violation of the terms of postrelease supervision could subject the violator to a lifetime in prison.
In conducting the second step of its analysis, this court again followed the guidance of our Supreme Court and the Ninth Circuit Court of Appeals, as well as that of the United States Supreme Court. This court stated in its decision in Barrera:
“Regarding the severity of the punishment, lifetime postrelease supervision is a severe penalty, but it is not as severe as capital punishment or life without parole, the two sentencing practices previously found unconstitutional by the United States Supreme Court by way of a categorical challenge to the Eighth Amendment. See Graham, 130 S.Ct. at 2027. Moreover, although in the context of a case-specific Eighth Amendment challenge, the Kansas Supreme Court has stated: ‘[W]hile 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. Unlike a life without parole sentence, lifetime postrelease supervision does not ‘mean[ ] denial of hope’ or that ‘good behavior and character improvement are immaterial.’ Graham, 130 S.Ct. at 2027.” 2013 WL 517581, at *10.
In Barrera, this court also considered the various penological justifications for lifetime postrelease supervision, beginning with rehabilitation and incapacitation:
“As stated in Williams and followed by our Supreme Court in Mossman and Cameron, ‘[r]ehabilitation 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. Supervised release can further the end of rehabilitating sex offenders [especially where the offender is required to receive treatment and avoid situations in which the offender might be tempted to offend again].... Relatedly, supervised release helps incapacitate sex offenders by keeping them under the watchful eye of probation officers who may be able to detect problems before they result in irreparable harm....’ Williams, 636 F.3d at 1234. See also Cameron, 294 Kan. at 898;Mossman, 294 Kan. at 930.” 2013 WL 517581, at *10.
This court next considered the goal of retribution, echoing the United States Supreme Court's conclusion in Graham that society is entitled to impose severe sanctions on nonhomicide offenders to express its condemnation of their crimes and to seek restoration of the moral imbalance caused by their offenses. Barrera, 2013 WL 517581, at *10. Finally, this court acknowledged that the deterrent effect of a sentence alone is not sufficient to justify the punishment but considered that a sentence of mandatory lifetime postrelease supervision could be sufficiently justified by the combined penological goals of rehabilitation, incapacitation, and retribution. 2013 WL 517581, at *10.
Consistent with the analysis in Barrera and based on the culpability of this category of offenders and the severity of the punishment in question as well as the legitimate penological goals of retribution, deterrence, incapacitation, and rehabilitation served by a sentence of lifetime postrelease supervision, we conclude that Santoy–Medina's sentence is not cruel and unusual. Accordingly, we reject Santoy–Medina's categorical challenge under the Eighth Amendment.
Apprendi Issue
Finally, Santoy–Medina argues that the district court violated his constitutional rights by sentencing him to the aggravated number in the presumptive grid box without proving the aggravating factors to a jury beyond a reasonable doubt. Santoy–Medina contends that pursuant to the United States Supreme Court's decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), any fact used to increase a defendant's sentence must be proved to a jury beyond a reasonable doubt.
As Santoy–Medina acknowledges, our Supreme Court addressed and rejected this argument in State v. Johnson, 286 Kan. 824, 842, 190 P.3d 207 (2008). Moreover, our Supreme Court explained that under K.S.A. 21–4721(c)(1), appellate courts lack jurisdiction to consider a challenge to any sentence within the presumptive sentence grid box. 286 Kan. at 851–52. There is no indication that our Supreme Court is departing from its holding in Johnson, and this court is duty bound to follow it. See State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. –––– (2012); see also State v. Deal, 293 Kan. 872, 890–91, 269 P.3d 1282 (2012) (reaffirming Johnson ). Because Santoy–Medina's grid sentence falls within the presumptive sentencing range under K.S.A. 21–4721(c)(1) (now codified at K.S.A.2012 Supp. 21–6820), this court is without jurisdiction to consider this issue on appeal. See Johnson, 286 Kan. at 851–52.
Affirmed in part and dismissed in part.