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State of Kansas v. Zachary Toahty-Harvey

April 12, 2013

STATE OF KANSAS, APPELLEE,
v.
ZACHARY TOAHTY-HARVEY, APPELLANT.



Appeal from Douglas District Court; PEGGY C. KITTEL, judge.

SYLLABUS BY THE COURT

SYLLABUS BY THE COURT 1. Subject matter jurisdiction is a question of law over which an appellate court has unlimited review. K.S.A. 21-4721(c) does not deprive an appellate court of jurisdiction to review those portions of a sentence upon which the State and the defendant have not agreed in the district court. 2. When determining whether a sentence is cruel or unusual punishment under § 9 of the Kansas Constitution Bill of Rights, a district court must make both legal and factual determinations. Accordingly, an appellate court applies a bifurcated standard of review: All of the evidence is reviewed, but not reweighed, to determine if there is sufficient support for the district court's factual findings, and the district court's legal conclusions drawn from those facts are reviewed de novo. 3. Punishment may be constitutionally impermissible under § 9 of the Kansas Constitution Bill of Rights even though it is 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. 4. To determine whether the length of a sentence offends the constitutional prohibition against cruel punishment, a court should consider three factors: (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. No one factor controls and, ultimately, one consideration may weigh so heavy that it directs the final conclusion, but consideration should be given to each prong of the test. 5. Under the facts of this case, a defendant's sentence of lifetime postrelease supervision upon conviction for 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.

The opinion of the court was delivered by: Johnson, J.

Affirmed.

The opinion of the court was delivered by JOHNSON, J.

Zachary C. Toahty-Harvey appeals from the portion of his sentence for aggravated indecent liberties with a child that imposed lifetime postrelease supervision. He contends that lifetime postrelease supervision is durationally disproportional and, therefore, it violates § 9 of the Kansas Constitution Bill of Rights. We reject Toahty-Harvey's arguments, concluding that the sentence in this case is not unconstitutionally disproportionate to the nature of the case and the character of the offender; that it is not unconstitutionally disproportionate to the sentences imposed for other crimes in Kansas; and that it is not unconstitutionally disproportionate to the punishments imposed in other jurisdictions for the same offense. Consequently, we affirm the sentence.

FACTUAL AND PROCEDURAL OVERVIEW

Toahty-Harvey pled nolo contendere (no contest) to one count of aggravated indecent liberties with a child, and the State offered the following factual basis at the plea hearing. In August 2009, 26-year-old Toahty-Harvey was a houseguest of the 12-year-old victim's family. Early one morning, he entered the victim's bedroom while she was sleeping and placed his hand in the area of her genitalia, making skin-to-skin contact. Based on the State's factual proffer and on a finding that the defendant's plea was knowingly and voluntarily made, the district court found Toahty-Harvey guilty.

The default sentence for the off-grid version of aggravated indecent liberties under these circumstances is a life sentence with a mandatory minimum term of 25 years. See K.S.A. 21-4643(a)(1)(C); K.S.A. 21-3504(a)(3)(A) and (c). But in return for defendant's plea, the State agreed to join in recommending that the district court depart downward to a grid sentence of 60 months. Toahty-Harvey filed a motion for departure, as well as a motion to declare Jessica's Law, K.S.A. 21-4643, unconstitutional. At sentencing, the district court granted the departure to a 60 months' prison term but stated that defendant would be subject to lifetime parole with electronic monitoring. The parties suggested to the court that the proper postincarceration supervision after a departure to the guidelines grid is postrelease supervision, rather than parole. The court took that matter under advisement.

At a subsequent hearing, the district court agreed that, after the departure, Toahty-Harvey was subject to lifetime postrelease supervision, rather than lifetime parole with electronic monitoring. Toahty-Harvey then conceded that his motion to find Jessica's Law unconstitutional with respect to his period of imprisonment was moot because of the durational departure, but he asserted that the lifetime postrelease supervision was unconstitutional. The district court proceeded to hear arguments from the defendant on that issue. The prosecutor's response was that "the State does not wish to be heard on this issue."

Applying the factors or techniques from State v. Freeman,223 Kan. 362, 574 P.2d 950 (1978), the district court determined that lifetime postrelease supervision in this case was not unconstitutionally disproportionate, in violation of § 9 of the Kansas Constitution Bill of Rights. Toahty-Harvey appealed on that sole issue. The State challenges our jurisdiction to consider the appeal.

JURISDICTION

As a threshold matter, the State directs our attention to K.S.A. 21-4721(c), which provides that an "appellate court shall not review: . . . (2) any sentence resulting from an agreement between the state and the defendant which the sentencing court approves on the record." The State argues that the parties jointly requested a departure sentence to 60 months, which the district court accepted, so that we are statutorily denied jurisdiction to review Toahty-Harvey's sentence challenge. Cf. State v. Johnson, 286 Kan. 824, 851-52, 190 P.3d 207 ...


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