Appeal from Geary District Court; Benjamin J. Sexton, Judge. Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Michelle L. Brown, assistant county attorney, Steven L. Opat, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Geary District Court; Benjamin J. Sexton, Judge.
Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Michelle L. Brown, assistant county attorney, Steven L. Opat, county attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., MARQUARDT, J., and BRAZIL, S.J.
Joshua Collins pled no contest to two counts of aggravated indecent solicitation of a child. At sentencing, Collins filed a motion arguing that lifetime postrelease supervision violates the 8th and 14th Amendments to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights. The district court denied the motion and ordered him to serve 120 months' imprisonment, followed by lifetime postrelease supervision. Collins timely appeals. Collins also argues on appeal that the district court erred in ordering him to pay the BIDS attorney fees. We affirm in part, vacate in part, and remand with instructions.
In July 2010, the Junction City Police Department began investigating allegations that Collins solicited 11–year–old Z.B. for sexual acts. Z.B. informed officers that while he was playing videogames, Collins “jumped on [him] and started humping [him].” Z.B. also told officers that on other occasions, Collins asked him for “blow jobs” and “hand jobs.” Collins was charged with two counts of aggravated indecent solicitation of a child and one count of aggravated indecent liberties with a child. Pursuant to his plea agreement, Collins pled no contest to two counts of aggravated indecent solicitation of a child. Collins' presentence investigation report showed that he had two prior felony convictions—aggravated indecent liberties with a child and failure to register as a sex offender. Because of his prior convictions, Collins had a criminal history score of B.
Prior to sentencing, Collins filed a motion entitled “Motion Concerning the Term of Postrelease Supervision,” arguing that lifetime postrelease supervision is unconstitutional and amounted to cruel and unusual punishment under the 8th and 14th Amendments to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights. During sentencing, Collins readdressed the motion, preserving the issue for appellate review. The district court rejected Collins' constitutional arguments, stating:
“When I look at your case, and I look at the factual basis given by the [State], as set forth in their response, and I look back at the criminal history, as cited by the [State], and I go through the first prong in Freeman, in regards to the nature of the offense, the character of the offender, sir, I find that that falls in favor of the State in that regard.
“In regards to whether or not ... this sentence compared to other sentence, the Court finds it is appropriate. Court denies the motion to depart on the dispositional and orders a lifetime post-release-supervision period.”
Collins timely appeals.
Lifetime Postrelease Supervision
On appeal, Collins argues that his sentence of lifetime postrelease supervision “offends the constitutional prohibition against cruel and unusual punishment found in the Eighth Amendment to the United States Constitution and Section 9 of the Kansas Constitution Bill of Rights.” After Collins and the State filed their briefs in this case, the Kansas Supreme Court filed two opinions—State v. Cameron, 294 Kan. 884, 281 P.3d 143 (2012), and State v. Mossman, 294 Kan. 901, 281 P.3d 153 (2012)—that dispose of Collins' constitutional arguments.
In Mossman, the defendant appealed a lifetime postrelease supervision sentence following a conviction of aggravated indecent liberties with a child. He argued that lifetime postrelease supervision constitutes cruel and/or unusual punishment and violated § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution. The Kansas Supreme Court rejected Mossman's arguments and concluded the sentence was not disproportionate to the seriousness of his crime, was not grossly disproportionate to the sentences imposed for other crimes in Kansas or similar crimes in other states, and was not categorically unconstitutional. 294 Kan. at 903.
In Cameron, the defendant was sentenced to lifetime postrelease supervision after being convicted of three counts of aggravated indecent solicitation of a child. On appeal, Cameron made the same arguments as Mossman. The Court again rejected these arguments and concluded that the lifetime postrelease supervision sentence is not disproportionate to the seriousness of the crime, is not grossly disproportionate to sentences imposed for other crimes in Kansas or similar crimes in other states, and is not categorically unconstitutional. 294 Kan. at 885.
In State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978), our Supreme Court established a three-part test for determining whether the length of a sentence offends the constitutional prohibition against cruel punishment. The factors to consider are:
“(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.” Freeman, 223 Kan. at 367.
Under the first Freeman factor—the nature of the offense and the character of the offender—Collins points to the fact that he was only 21 years old and there was no violence involved. The district court made the following findings on the record:
“In regards to the lifetime post-release-supervision period, your demeanor today is much different than that when you gave your defendant's version of these events.... [I]t's strikingly different, and I want to read those into the record today.
“When asked about the conviction, you reported, ‘It's ridiculous. I feel I was wrongly charged, but my lawyer said it's the best thing that can happen. So, I feel depressed; I just want to get it over with.’
“When asked about his version of the current events, [he replied,] ‘I really don't know what is all going on. I have made comments in the past, but I was never serious about any of it. I have ... never ... touched anyone or asked anyone for any favors.’
“When I look at your case, and I look at the factual basis given by the State of Kansas, as set forth in their response, and I look back at the criminal history, as cited by the State of Kansas, and I go through the first prong in Freeman, in regards to the nature of the offense, the character of the offender, sir, I find that that falls in favor of the State in that regard.
“Now ... your demeanor here today, one thing that sex offenders all bear and that is the ability to manipulate. Now, if you're honest and being sincere, in your statements here today, wonderful. But make no mistake, I get that. I get that there's some form of manipulation.”
As Collins admits, his crime involved activities with an 11–year–old boy. There is no question that the crime is very serious and one that can cause significant psychological harm. Substantial competent evidence supports the district court's findings relating to the first Freeman factor. In turn, the district court's factual findings support its legal conclusion that the first Freeman factor does not weigh in Collins' favor.
Under the second Freeman factor—comparison of his punishment with punishments imposed in this jurisdiction for more serious offenses—Collins argued in his presentence motion, as he does on appeal, that his lifetime postrelease supervision sentence is disproportionate to other sentences in Kansas. Collins' argument focuses on a committee report, and he cites several statutes for comparison. The district court briefly addressed the second factor, stating: “In regards to whether or not ... this sentence compared to other sentence, the Court finds it is appropriate.”
Both the Cameron and Mossman cases discussed the proportionality relationship. In Mossman, the Court concluded that while 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 relation to the first Freeman factor.” Mossman, 294 Kan. at 917. In Cameron, the Court explained it as “the difference in proportionality between Cameron's sentence, especially in light of the factual circumstances, and one imposed for second-degree murder is not so significant that the second Freeman factor outweighs the first Freeman factor.” 294 Kan. at 893. In turn, the district court's factual findings support its legal conclusion that the second Freeman factor does not weigh in Collins' favor.
Under the third Freeman factor—comparison of the penalty with punishments in other jurisdictions for the same offense—Collins argues, “There is a national consensus against mandatory lifetime postrelease supervision.” However, Collins' argument is without merit. Our Supreme Court recently held in Cameron:
“While we find some merit to Cameron's arguments that only a minority of states impose a similar punishment, the lifetime postrelease supervision sentence is proportionate to sentences mandated in some other jurisdictions and is not grossly disproportionate in light of the strength of the first Freeman factor. As we held in Mossman:
‘Under the facts of this case, a defendant's sentence of lifetime postrelease supervision under K.S.A. 22–37I7(d)(l)(G) for the crime of aggravated indecent liberties with a child is not cruel or unusual punishment under § 9 of the Kansas Constitution Bill of Rights; in other words, it is not so disproportionate to the crime that it shocks the conscience and offends fundamental notions of human dignity. Factors leading to this conclusion include: the nature of the offense, which is serious and is a sex crime against a minor that historically has been treated as a forcible or violent felony regardless of whether there is physical force; the defendant's characteristics; and the penological goals of postrelease supervision, which include retribution, deterrence, incapacitation, and rehabilitation. These factors outweigh the lack of strict proportionality with other sentences in Kansas and other jurisdictions, especially given that the sentence is not grossly disproportionate.’ Mossman, 294 Kan. at 901, Syl. ¶ 5.” Cameron, 294 Kan. at 894–95.
For these same reasons, Collins' sentence for the crime of aggravated indecent solicitation of a child does not violate § 9 of the Kansas Constitution Bill of Rights.
Collins also argues that his lifetime postrelease supervision sentence violates the prohibition against cruel and unusual punishment under the Eighth Amendment to the United States Constitution. Our Supreme Court addressed this issue in Mossman and Cameron as well. In both Mossman and Cameron, the court considered the United States Supreme Court's recent opinion, Graham v. Florida, 560 U.S. ––––, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010).
Under Graham, a challenge pursuant to the Eighth Amendment to a term-of-years sentence as disproportionate and, therefore, cruel and unusual punishment falls into one of two general classifications. “The first [category] 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.
In a case-specific proportionality analysis, our Supreme Court determined this issue involves the same standard of appellate review as applies to the application of the Freeman factors. Further, as noted in Mossman, the United States Supreme Court has emphasized that it is only the rare case where the threshold comparison of the gravity of the offense and the harshness of the penalty will lead to an inference of gross disproportionality. Mossman, 294 Kan. at 908–09 (citing Graham, 130 S.Ct. at 2022).
“This case is not such a rare case given the severity of the crime. Moreover, while 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. Given the seriousness of the offense, the vulnerability of Collins' victim, the potential psychological damage to the victim, and the penological goals of postrelease supervision, Collins' case-specific arguments are unavailing.
The Graham Court outlined the steps of a categorical analysis, stating:
“The 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. [Citation omitted.] 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,’ [citation omitted,] the Court must determine in the exercise of its own independent judgment whether the punishment in question violates the Constitution. [Citation omitted.]” Graham, 130 S.Ct. at 2022.
Explaining the application of these factors, the Court stated:
“Community consensus, while ‘entitled to great weight,’ is not itself determinative of whether a punishment is cruel and unusual. [Citation omitted.] In accordance with the constitutional design, ‘the task of interpreting the Eighth Amendment remains our responsibility.’ [Citation omitted.] The judicial exercise of independent judgment 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. [Citations omitted.] In this inquiry the Court also considers whether the challenged sentencing practice serves legitimate penological goals. [Citations omitted.]” Graham, 130 S.Ct. at 2026.
Finally, the Graham court noted its prior cases recognizing retribution, deterrence, incapacitation, and rehabilitation as legitimate goals of penal sanctions. 130 S.Ct. at 2028.
Collins argues that he made no sexual contact with Z.B. and cites to a study that found that sex offenders are not as likely to reoffend as other criminals. However, Collins has already shown a history of reoffending. Collins makes several arguments regarding the restrictions that he will have to comply with on postrelease supervision; however, Collins did not indicate how these restrictions will have a greater effect on him personally.
Collins also argues that there “is a national consensus against mandatory lifetime postrelease supervision without the possibility of release or discharge for this class.” Collins suggests that only four states impose comparable sentences. Our Supreme Court, however, quoted United States v. Williams, 636 F.3d 1229 (9th Cir.2011), cert. denied132 S.Ct. 188 (2011), as follows:
“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 county serving such sentences. See Graham, 130 S.Ct. at 2024. 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.]' Williams, 636 F.3d at 1233–34.” Cameron, 294 Kan. at 897.
Lastly, the Cameron court used its “ ‘ “independent judgment” ‘ “ in considering “ ‘ “whether the challenged sentencing practice serves legitimate penological goals.” ‘ Williams, 636 F.3d at 1234 (quoting Graham, 130 S.Ct. at 2026).” 294 Kan. at 898. The goals of rehabilitation 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.’ [Citation omitted.]” Mossman, 294 Kan. at 930. This statement is applicable to Collins' case since this is his second felony conviction for a child sex offense.
As a result, Collins' sentence of lifetime postrelease supervision for his conviction of aggravated indecent solicitation of a child is not categorically disproportionate and, therefore, is not cruel and unusual punishment under the 8th Amendment to the United States Constitution.
Payment of Attorney Fees
In State v. Robinson, 281 Kan. 538, 546–47, 132 P.3d 934 (2006), our Supreme Court held that the sentencing court's failure to explicitly consider the financial resources of the defendant and the nature of the burden that payment would impose was reversible error. In reaching that conclusion, the Robinson court interpreted K.S.A.2005 Supp. 22–4513(b) and found the language to be mandatory. The Court further stated that the statute clearly requires a sentencing judge to take into account the defendant's financial resources when the reimbursement is ordered. The trial court is also required to state on the record how the factors were weighed in the court's decision. 281 Kan. at 546.
Here, the district court did not ask whether Collins was presently working, inquire about the wages he anticipated making, or ask if he had any other financial burdens which would affect his ability to pay attorney fees. At sentencing, the district court merely stated:
“Court orders court costs of $190.50, DNA database fee of $200, booking and in, uh, fee of $45, BIDS fee of $100, and attorney's fee of $975. Court finds he's an able-bodied, working person, he has the ability to become employed, either now or after he gets out, and make the payment on those fines and costs.”
The State concedes that the trial court erred on this issue. This case is remanded to the district court with directions to consider Collins' financial resources and the burden of paying the BIDS attorney fees.
Affirmed in part, vacated in part, and remanded with directions.