Appeal from Montgomery District Court; GARY R. HOUSE, judge.
SYLLABUS BY THE COURT 1. The three-part Freeman test, see State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), applies to constitutional challenges to sentences under § 9 of the Kansas Constitution Bill of Rights. 2. 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. 3. In determining whether a sentence is cruel or unusual under § 9 of the Kansas Constitution Bill of Rights, a district court must make both legal and factual inquiries. 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. 4. No one factor of the Freeman test controls. Ultimately, one factor may weigh so heavily that it directs the final conclusion. Before that conclusion is reached, however, consideration should be given to each prong of the test. 5. The first Freeman factor (i.e.,the nature of the offense and the character of the offender) is "inherently factual, requiring examination of the facts of the crime and the particular characteristics of the defendant" and the second and third Freeman factors (i.e.,a comparison of the punishment with punishment imposed in this jurisdiction for more serious offenses; a comparison of the penalty with punishments in other jurisdictions for the same offense) are legal determinations. 6. This court may correct an illegal sentence sua sponte.
The opinion of the court was delivered by: Rosen, J.:
Sentence affirmed in part and vacated in part.
The opinion of the court was delivered by
Monty Rogers pleaded no contest to aggravated criminal sodomy, an off-grid crime. Pursuant to K.S.A. 21-4643(a)(1)(D), the district court imposed a prison term of life without the possibility of parole for 25 years. The district court also imposed lifetime postrelease supervision. Rogers argues on appeal that both aspects of his sentence-his prison sentence and his postrelease supervision term-are disproportionate to his crime of conviction and, thus, unconstitutional.
The State charged Rogers with two counts of aggravated criminal sodomy in violation of K.S.A. 21-3506(a)(1). The basis for these charges was Rogers' act of performing oral sex on two girls (ages 5 and 7) on or about August 18, 2009. After initially denying these allegations, Rogers admitted to police that he had orally sodomized both girls. Because Rogers was 46 years old when he committed these acts, the aggravated criminal sodomy counts were charged as off-grid crimes. See K.S.A. 21-3506(c) (aggravated criminal sodomy of a child less than 14 years old committed by an offender 18 years old or older is an off-grid felony); K.S.A. 21-4643(a)(1)(D) (An offender 18 years old or older who commits aggravated criminal sodomy of a child less than 14 years old "shall be sentenced to a term of imprisonment for life with a mandatory minimum term of imprisonment of not less than 25 years.").
Ultimately, Rogers, pursuant to a plea agreement, pleaded no contest to one count of aggravated criminal sodomy (involving the 7 year old) in exchange for the State's promise to dismiss the other aggravated criminal sodomy count.
Prior to sentencing, Rogers filed a document entitled "Notice of Defendant's Objection to Sentencing Pursuant to K.S.A. 21-4643," wherein he argued that imposing a hard 25 life sentence in this case would constitute cruel and/or unusual punishment in violation of the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights because such a prison sentence would be disproportionate to his crime of conviction. In support of his argument, Rogers cited the three factors from State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), for determining whether a sentence is disproportionate and, thus, unconstitutional under § 9 of the Kansas Constitution Bill of Rights:
"(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 punishment 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."
See also State v. Gomez, 290 Kan. 858, 867, 235 P.3d 1203 (2010) (The Freeman factors are applicable to determining whether a sentence is disproportionate and, thus, unconstitutional under § 9 of the Kansas Constitution Bill of Rights.).
Regarding the first factor, Rogers noted that he was 46 years old and that he had a criminal history score of I. He also contended that his aggravated criminal sodomy conviction was not a violent crime and resulted in little to no injury to the victim. Furthermore, he argued that his crime did not involve any aggravating factors other than the age of the child. Finally, though conceding that Jessica's Law was enacted in Kansas to protect young children from sexual abuse, he argued that his crime was vastly different from the factual situation (abduction, rape, and brutal murder of Jessica Lunsford) that gave rise to the law being originally enacted in Florida. See State v. D.S.J., 15 So. 3d 1188, 1193 (La. App. 2009) (explaining the factual impetus for Florida's passage of the Jessica Lunsford Act).
For the second factor, Rogers argued that the hard 25 life sentence prescribed by K.S.A. 21-4643 for his aggravated criminal sodomy conviction was greater than sentences prescribed for more serious crimes under the Kansas' criminal code. To illustrate this claim, Rogers stated:
"The only crime under Kansas law which carries the same sentence is premediated [sic] murder. All other forms of homicide carry a lesser sentence. If the defendant had been convicted of second degree murder, intentional, a severity level 1 offense with his criminal history of I, the maximum sentence the court could impose would be 165 months, almost half of the 300 month[s] hard time carried by K.S.A. 21-4643. The ...