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State v. Collins

Court of Appeals of Kansas.
Dec 21, 2012
291 P.3d 105 (Kan. Ct. App. 2012)

Opinion

No. 100,996.

2012-12-21

STATE of Kansas, Appellee, v. Eric H. COLLINS, Appellant.

Appeal from Sedgwick District Court; Richard T. Ballinger, Judge. Rachel Pickering, of Kansas Appellate Defender Office, for appellant. David Lowden, chief attorney, appellate division, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.


Appeal from Sedgwick District Court; Richard T. Ballinger, Judge.
Rachel Pickering, of Kansas Appellate Defender Office, for appellant. David Lowden, chief attorney, appellate division, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., MALONE, C.J. and BUKATY, S.J.

MEMORANDUM OPINION


PER CURIAM:

Eric Collins appeals his sentence following his conviction of aggravated sexual battery. Collins claims that his lifetime postrelease supervision violates the provisions against cruel and unusual punishment found in the Eighth Amendment to the United States Constitution and in § 9 of the Kansas Constitution Bill of Rights. For the reasons set forth herein, we affirm the district court's judgment.

On December 21, 2007, the State charged Collins with one count of rape. Pursuant to a plea agreement, Collins pled guilty to the amended charge of aggravated sexual battery. On March 17, 2008, the district court sentenced Collins to 31 months' imprisonment and lifetime postrelease supervision. Collins timely appealed his sentence.

On August 13, 2009, after the briefs were filed, this court ordered the parties to show cause why the appeal should not be dismissed, as it appeared Collins was appealing the imposition of lifetime postrelease supervision, a presumptive sentence which this court has no jurisdiction to review. Collins filed a response to the show-cause order, arguing that postrelease supervision is not part of a presumptive sentence. On August 31, 2009, this court noted the response and dismissed the appeal for lack of jurisdiction. Collins filed a petition for review. On June 23, 2010, the Supreme Court summarily remanded the case to this court to consider the constitutional issue. The Supreme Court stated that “[t]o find that a sentence is a presumptive sentence, so as to deprive the appellate court of jurisdiction, the appellate court must first find ‘that the sentencing scheme at issue did not offend constitutional principles.’ [Citation omitted.]”

On June 29, 2011, this court issued another show-cause order, noting that the sole issue on appeal appeared to be a constitutional issue that was not raised in the district court and was thus precluded on appeal. Collins was ordered to show cause why the appeal should not be summarily affirmed under Supreme Court Rule 7.041 (2011 Kan. Ct. R. Annot. 59). Collins filed a response, arguing that this court should remand to the district court for a hearing on the constitutionality of lifetime postrelease supervision because defense counsel objected at sentencing. Additionally, Collins filed a motion to file a supplemental brief that raised a categorical challenge to lifetime postrelease supervision in addition to the case-specific proportionality challenge raised in his original brief. This court allowed the supplemental brief and allowed the State to file a responsive brief.

Section 9 of the Kansas Constitution Bill of Rights states: “All persons shall be bailable by sufficient sureties except for capital offenses, where proof is evident or the presumption great. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.” Likewise, the Eighth Amendment to the United States Constitution, which the Fourteenth Amendment made applicable to the States, provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

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. State v. Gomez, 290 Kan. 858, Syl. ¶ 4, 235 P.3d 1203 (2010).

Collins raises both types of Eighth Amendment challenge, (1) arguing that lifetime postrelease supervision is disproportionate in his specific case and (2) raising a categorical challenge. In addition to his Eighth Amendment claims, Collins argues that lifetime postrelease supervision is so disproportionate a sentence in his case that it violates § 9 of the Kansas Constitution Bill of Rights. The State first argues that the case-specific argument is not properly before the court because Collins failed to adequately object in district court. In its supplemental brief, the State contends that a categorical challenge is inappropriate in this case and that Collins' request would impermissibly widen the applicability of categorical challenges.

The sentencing provision Collins challenges is found in K.S.A.2011 Supp. 22–3717(d)(1)(G) and states that, except in circumstances that do not apply here, “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.2011 Supp. 22–3717(d)(2)(I) states that aggravated sexual battery is a sexually violent crime.

The constitutionality of a sentencing statute is a question of law subject to unlimited review. State v. Riojas, 288 Kan. 379, 388, 204 P.3d 578 (2009). In addition, appellate courts presume statutes are constitutional and must resolve all doubts in favor of a statute's validity. Courts must interpret a statute in a way that makes it constitutional if there is any reasonable construction that would maintain the legislature's apparent intent. State v. Gaona, 293 Kan. 930, 958, 270 P.3d 1165 (2012). Case-specific proportionality challenge

The State argues, as a threshold issue, that Collins failed to adequately raise in the district court his case-specific proportionality argument; therefore, the State contends, the issue is not properly before this court. In order to raise a case-specific challenge to the proportionality of his sentence, Collins must have preserved the argument by raising it in the district court; the general rule is that constitutional issues may not be raised for the first time on appeal. See State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012). Although there are three recognized exceptions to this rule, Collins does not assert that the issue falls within any of the exceptions; rather, Collins argues that he sufficiently objected in the district court.

At the sentencing hearing, while the district court was discussing the presumptive sentence with the parties, the record reflects the following objection by Collins' counsel:

“MR. SULLIVAN [defense counsel]: Your Honor, just—I think you have covered everything but I'm not even sure exactly what I want to do about this. I guess, maybe on—I am going to object to the lifetime post-release just for this reason. Just in case the Appellate Court does come down in the future and say the State—the legislature can't do that. Just to protect Mr. Collins just in case. So I would object to the lifetime post-release.

“THE COURT: Your objection is noted for the record. I hope the public defender takes this up. It's a question that needs to be decided. Your objection is overruled. I have concerns. Some concerns with the [overbreadth] nature of it but quite frankly it's not for me to overrule at this level, especially with the information I have in front of me. So it certainly has a valid reason behind it so the record is clear that is exactly what I ruled. Your objection to it is overruled.”

The State argues that this was an insufficiently specific objection to preserve the issue for appeal, citing State v. Thomas, 288 Kan. 157, 199 P.3d 1265 (2009). In Thomas, the defendant pled no contest to two counts of aggravated indecent liberties with a child. Prior to sentencing, the defendant filed a motion for departure, in which he stated that, due to his age, his presumptive sentence was tantamount to life without parole, which was cruel and unusual punishment. 288 Kan. at 158. At sentencing, however, the defendant did not raise the issue of cruel or unusual punishment, nor did he present evidence related to the issue. The district court denied the departure motion and sentenced the defendant to 59 months' imprisonment for the first count and a mandatory life sentence without the possibility of parole for 25 years for the second count; moreover, the district court ordered lifetime postrelease supervision. 288 Kan. at 158–59.

On direct appeal, the defendant argued that his life sentence violated the protections against cruel or unusual punishments located in § 9 of the Kansas Constitution Bill of Rights. 288 Kan. at 159. The three-prong test used to determine whether a sentence is disproportionate in violation of § 9 of the Kansas Constitution Bill of Rights, often referred to as the Freeman test, considers (1) the nature of the offense and the character of the offender, (2) “[a] comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses,” and (3) “[a] comparison of the penalty with punishments in other jurisdictions for the same offense. [Citation omitted.]” 288 Kan. at 159. After reciting the test, our Supreme Court stated:

“Thomas did not address these factors before the district court, did not present evidence, and did not ask the court to make findings of fact or conclusions of law on the issue. [Citations omitted.] Moreover, although Thomas mentioned that a life sentence would be a cruel and unusual punishment in his motion, on appeal he advances a different theory regarding how the sentence violates § 9 of the Kansas Constitution Bill of Rights. In his motion, Thomas based the argument on his age and the likelihood he would not live long enough to be paroled. On appeal he argues the sentence is disproportionate to the wrong and to other sentences provided for under the KSGA.” 288 Kan. at 159–60.

As the State argues, Collins' situation is very similar to Thomas. Although Collins lodged a general objection at the sentencing hearing to lifetime postrelease supervision, he did not raise the argument he now proffers on appeal. In fact, Collins stated no specific basis for his objection at sentencing—he merely objected in order to preserve the issue should an appellate court later rule that the statute was wrong in some way. This is not specific enough to allow this court to consider Collins' case specific proportionality argument on its merits. Also, as in Thomas, the district court did not make the factual findings required for this court to conduct meaningful appellate review of the case-specific argument Collins now raises.

The Thomas court addressed only a case-specific proportionality challenge under § 9 of the Kansas Constitution Bill of Rights. However, an analysis under the Eighth Amendment to the United States Constitution results in the same conclusion that Collins may not raise this issue for the first time on appeal. Our Supreme Court has stated:

“ ‘An Eighth Amendment challenge that the length of a term-of-years sentence is disproportionate given all the circumstances in a particular case is a case-specific challenge and is inherently factual. Because appellate courts do not make factual findings but review those made by district courts, such a challenge must be raised in the district court and a defendant must obtain the necessary findings of fact in the district court in order to preserve the issue for appellate review.’ “ State v. Berriozabal, 291 Kan. 568, 593, 243 P.3d 352 (2010) (quoting Gomez, 290 Kan, at 858, Syl. ¶ 6).

Finally, Collins asks this court to remand the case back to the district court for an evidentiary hearing at which, presumably, the district court could make the necessary factual findings to address the case-specific proportionality challenge. Collins cites no authority to support such a request and the State contends that granting the request would be inappropriate. In State v. Seward, 289 Kan. 715, 721, 217 P.3d 443 (2009), the Kansas Supreme Court remanded the case to the district court for entry of factual findings and conclusions of law on the defendant's challenge to the constitutionality of the life imprisonment sentence provided for by Jessica's Law. However, the court specifically emphasized that the case was exceptional and that future defendants who wished to appeal on the basis of a constitutional challenge to a sentencing statute needed to ensure the district court's findings and conclusions are sufficient. 289 Kan. at 721.

Collins has not argued that his case is exceptional in any way that would merit the extraordinary remedy of remand for an evidentiary hearing. 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. Berriozabal, 291 Kan. at 594. We decline Collins' request to remand for an evidentiary hearing on his case-specific proportionality challenge to lifetime postrelease supervision. Categorical Challenge Under the Eighth Amendment

In a supplemental brief, Collins raises a categorical challenge to his lifetime postrelease supervision under the Eighth Amendment to the United States Constitution. Generally, constitutional issues cannot be raised for the first time on appeal. But Kansas courts have recognized three exceptions to this general rule: (1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the district court is right for the wrong reason. State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010).

In Gomez, the defendant argued for the first time on appeal that his sentence was disproportionate and therefore constituted cruel and unusual punishment under the Eighth Amendment. In deciding whether the court could consider the defendant's argument raised for the first time on appeal, the court found guidance in the United States Supreme Court's decision in Graham v. Florida, 560 U.S. ––––, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), in which the Court found that imposition of life without parole on juveniles convicted of nonhomicide crimes was categorically unconstitutional. The Graham Court explained that its decisions analyzing proportionality under the Eighth Amendment fall into two general classifications: “The first involves challenges to the length of term-of-years sentences given all the circumstances in a particular case. The second comprises cases in which the Court implements the proportionality standard by certain categorical restrictions on the death penalty.” 130 S.Ct. at 2021.

After reviewing Graham, the Kansas Supreme Court in Gomez determined that the factors assessed in a categorical proportionality challenge are not case-specific and generally raise questions of law. Therefore, consistent with the first exception to the general rule that an issue cannot be raised for the first time on appeal, a categorical proportionality challenge under the Eighth Amendment may in certain circumstances be raised for the first time on appeal. Gomez, 290 Kan. at 866. Accordingly, we will consider Collins' categorical challenge under the Eighth Amendment.

The first question this court must examine is the category to which the analysis must apply. In Graham, the United States Supreme Court divided categorical challenges into two subsets: “one considering the nature of the offense, the other considering the characteristics of the offender.” 130 S.Ct. at 2022. For example, the Court has determined that capital punishment is a constitutionally impermissible sentence for nonhomicide crimes against individuals—considering the nature of the offense—and for defendants who committed their crimes while under age 18—considering the characteristics of the offender. See 130 S.Ct. at 2022.

Collins raises a challenge regarding the nature of the offense. He seeks to limit his class of offenders only to those who have been convicted of sex offenses involving the “non-consensual touching of the victim, who is 16 years or older, with the intent to arouse or satisfy the sexual desires of the offender, when the victim is overcome by force or fear, unconscious or physically powerless, or incapable of giving consent.”

Our Supreme Court recently addressed the determination of the nature of the offense in State v. Cameron, 294 Kan. 884, 896–97, 281 P.3d 143 (2012), and Mossman, 294 Kan. 901, 927–29, 281 P.3d 153 (2012). In both Cameron and Mossman, our Supreme Court found no basis for “considering a classification of an offense that is any narrower than the crime of conviction.” Cameron, 294 Kan. at 897; see Mossman, 294 Kan. at 928. In Cameron, the category was aggravated indecent solicitation of a child. In Mossman, the category was aggravated indecent liberties with a child. Following Cameron and Mossman, the nature of the offense to which this court should apply the proportionality analysis in the instant case is the category reflecting Collins' crime of conviction—aggravated sexual battery.

Now that the class of offenders is clear, we will proceed to analyze Collins' categorical challenge under the Eighth Amendment. Under a categorical proportionality 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. Second, 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. Graham, 130 S.Ct. at 2022.

Collins argues that there is a national consensus against lifetime postrelease supervision without the possibility of release. In addressing this argument, both the Mossman and Cameron courts relied heavily on United States v. Williams, 636 F.3d 1229 (9th Cir.), cert. denied132 S.Ct. 188 (2011). In Williams, the Ninth Circuit Court of Appeals considered a claim that lifetime supervised release was unconstitutionally cruel and unusual punishment for the crime of child pornography. 636 F.3d at 1231. The Williams Court stated:

“Here, ‘objective indicia’ suggest that society is comfortable with lifetime sentences of supervised release for sex offenders, as such sentences are common. According to the United States Sentencing Commission, in the last five years, federal courts have sentenced 1875 defendants convicted of child pornography and child prostitution crimes to lifetime supervised release. [Citation omitted.] By way of comparison, in banning the sentence of life without parole for juvenile nonhomicide offenders, the Supreme Court noted that there were then just 123 people in the country serving such sentences. [Citation omitted.] Further, the percentage of federal sex offenders receiving life terms of supervised release is increasing, climbing from 9.3 percent in 2005 to 20.5 percent in 2009. [Citation omitted.] 636 F.3d at 1233–34.

Here, Collins has not provided citation to any instance in which a court has found mandatory lifetime postrelease supervision of a violent sex offender to be cruel and unusual punishment. Although, as the Mossman court recognized, only a handful of states impose such an absolute punishment, that fact does not necessarily translate into a national consensus condemning such mandatory lifetime postrelease supervision of violent sex offenders. Therefore, 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; see also Cameron, 294 Kan. at 897 (adopting and applying Williams ); Mossman, 294 Kan. at 929–30 (same).

Next, “guided by ‘the standards elaborated by controlling precedents and by [its] own understanding and interpretation of the Eighth Amendment's text, history, meaning, and purpose,’ [citation omitted] [this court] must determine in the exercise of its own independent judgment whether the punishment in question violates the Constitution.” Graham, 130 S.Ct. at 2022. This determination “requires consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question. [Citation omitted.]” 130 S.Ct. at 2026. In this inquiry the Court also considers whether the challenged sentencing practice serves legitimate penological goals, including retribution, deterrence, incapacitation, and rehabilitation. Graham, 130 S.Ct. at 2022, 2026, 2028.

In Graham, the United States Supreme Court weighed the offenders' culpability because it had been previously established that “because juveniles have lessened culpability they are less deserving of the most severe punishments.” 130 S.Ct. at 2026. (citing Roper v. Simmons, 543 U.S. 551, 569, 125 S.Ct. 1183, 161 L.Ed.2d 1 [2005] ). Additionally, the Court “recognized that defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers. [Citations omitted.]” Graham, 130 S.Ct. at 2027. Therefore, compared to an adult murderer, an adult sex offender, such as Collins, who did not kill or intend to kill has diminished moral culpability. See 130 S.Ct. at 2027 (holding that a juvenile offender who did not kill or intend to kill has a twice-diminished moral culpability when compared to an adult murderer).

Regarding the punishment, while lifetime postrelease supervision is a severe penalty, 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 130 S.Ct. at 2027 (A death sentence is “ ‘unique in its severity and irrevocability’ “ and “life without parole is ‘the second most severe penalty permitted by law.’ [Citation omitted.]”). Moreover, although in the context of a case-specific Eighth Amendment challenge, our 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.

This court must also consider the penological justifications for lifetime postrelease supervision because “[a] sentence lacking any legitimate penological justification is by its nature disproportionate to the offense.” Graham, 130 S.Ct. at 2028. 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.

Retribution and deterrence are the other recognized penological justifications for a sentencing practice. Graham, 130 S.Ct. at 2028. Although these factors were not proportional in Graham because a juvenile—an offender with comparatively less moral culpability—was receiving the law's second most severe penalty, here, retribution and deterrence are much more proportional. See 130 S.Ct. at 2028 (stating that retribution and deterrence were disproportional sentencing factors for a juvenile offender). Lifetime postrelease supervision for an adult offender is sufficiently justified by the combined penological goals of rehabilitation, incapacitation, retribution, and deterrence. As a result, Collins' sentence to lifetime postrelease supervision under K.S.A.2011 Supp. 22–3717(d)(1)(G) for his conviction of aggravated sexual battery is not categorically disproportional and, accordingly, is not cruel and unusual punishment under the Eighth Amendment to the United States Constitution.

Affirmed.


Summaries of

State v. Collins

Court of Appeals of Kansas.
Dec 21, 2012
291 P.3d 105 (Kan. Ct. App. 2012)
Case details for

State v. Collins

Case Details

Full title:STATE of Kansas, Appellee, v. Eric H. COLLINS, Appellant.

Court:Court of Appeals of Kansas.

Date published: Dec 21, 2012

Citations

291 P.3d 105 (Kan. Ct. App. 2012)