Appeal from Saline District Court; RENE S. YOUNG, judge.
SYLLABUS BY THE COURT 1. In this case, a defendant's case-specific proportionality challenge does not demonstrate that his Jessica's Law hard 25 life sentences for rape and aggravated criminal sodomy violate the Eighth Amendment to the United States Constitution or § 9 of the Kansas Constitution Bill of Rights. 2. A defendant sentenced for an off-grid crime is ineligible for lifetime postrelease supervision and is subject only to parole instead.
The opinion of the court was delivered by: Beier, J.
Affirmed in part, reversed in part, and remanded with directions.
The opinion of the court was delivered by BEIER, J.
Defendant Roy Seward appeals his sentences following his guilty pleas to one count of rape and one count of aggravated criminal sodomy for acts committed against his stepdaughter. The district court judge sentenced Seward to concurrent hard 25 life sentences under Jessica's Law, K.S.A. 21-4643(a)(1)(B) and (D) (now K.S.A. 2012 Supp. 21-6627), and to lifetime postrelease supervision.
Seward argues that his hard 25 life sentences are disproportionate and violative of the Eighth Amendment to the United States Constitution and § 9 of the Bill of Rights of the Kansas Constitution. Both of these challenges are case specific. We reject them. Seward does not pursue an Eighth Amendment categorical challenge to his sentences on this appeal, and thus any such earlier challenge is deemed abandoned. In addition, we note that the district court judge erred in ordering lifetime postrelease supervision, and we vacate that portion of her sentencing pronouncement.
FACTUAL AND PROCEDURAL BACKGROUND
Seward originally was charged with two counts of rape and six counts of aggravated criminal sodomy based on allegations made by his then 11-year-old stepdaughter, R.T. She told investigators that Seward had touched his "private" to her "private" and that he had "put it in." She said this happened more than once but less than five times. R.T. also said that Seward put his "private" inside her "buttocks" on several occasions and that "it hurt." When asked if Seward made her touch him, R.T. nodded her head and said that "he made me suck on it," referring to Seward's "private" area. R.T. thought this conduct occurred once a week for several weeks. She also said that Seward licked her "private" about three times. According to R.T., Seward showed her a movie on his computer of people "doing it," and the investigator confirmed with R.T. that people were having sex in the movie. R.T. also told investigators that Seward told her not to tell anyone. A sexual assault examination of R.T. revealed a healed injury to her hymen.
In exchange for Seward's guilty pleas to one count of rape and one count of aggravated criminal sodomy, the State dropped the remaining charges.
Before sentencing, Seward filed a departure motion in which he argued, inter alia, that "[t]he life imprisonment sentence provided for by 'Jessica's Law,' K.S.A. 21-4643, is disproportionate and cruel and unusual under the state and federal constitutions." At Seward's sentencing hearing, defense counsel made a brief reference to the alleged unconstitutionality of Jessica's Law. The district judge did not address Seward's constitutional arguments, denied the departure motion, and sentenced Seward to two concurrent hard 25 life sentences and lifetime postrelease supervision. On Seward's appeal, we remanded the case so that the district judge could enter "sufficient factual findings and conclusions of law" on Seward's constitutional claims. State v. Seward, 289 Kan. 715, 721, 271 P.3d 443 (2009).
In his brief submitted to the district judge before the hearing on remand, Seward argued that the district judge should consider that Seward had been a victim of childhood physical and sexual abuse himself; that both he and his mother suffer from bipolar disorders; that he spent 5 years of his youth in a boys' home; that he dropped out of high school in the 10th grade; that he has low intelligence; that his guilty pleas saved the victim from the trauma of testifying at trial; that he expressed remorse; that he had no history of violent or sexual misbehavior; and that a psychological evaluation indicated he had a low risk of recidivism. Seward also provided a comparison of sentences in this and other jurisdictions.
The district judge determined that the imposition of two hard 25 life sentences was not disproportionate to the offenses committed and thus did not constitute cruel and/or unusual punishment.
When considering a case-specific disproportionality challenge to a sentence under the Eighth Amendment and § 9, a district judge must make factual findings and draw conclusions of law. See State v. Woodard, 294 Kan. 717, 720, 280 P.3d 203 (2012) (citing State v. Ortega-Cadelan, 287 Kan. 157, 160-161, 194 P.3d 1195 ). "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. [Citations omitted.]" Woodard, 294 Kan. at 720.
In addition, a statute is presumed constitutional, and all doubts must be resolved in favor of its validity. State v. Britt, 295 Kan. 1018, Syl. ¶ 13, 287 P.3d 905 (2012); Woodard, 294 Kan. at 720. "If there is any reasonable way to construe a statute as constitutionally valid, the court has the authority and the duty to do so." Britt, 295 Kan. 1018, Syl. ¶ 13.
Section 9 Analytical Framework
Section 9 of the Kansas Constitution Bill of Rights provides:
"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." Kan. Const. Bill of Rights, § 9.
"Under § 9 of the Kansas Constitution Bill of Rights, a punishment may be constitutionally impermissible, although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." State v. Gomez, 290 Kan. 858, Syl. ¶ 9, 235 P.3d 1203 (2010). Whether a sentence is "cruel or unusual" under § 9 because of its length is controlled by a three-part test, first outlined in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978). This three-part test weighs the following:
"(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 ...