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Appeal fro Douglas District Court; Michael J. Malone, judge.
BY THE COURT
1. The period of postrelease supervision and the period of confinement are distinct segments of a criminal sentence. K.S.A. 21-4721(c)(1) does not prevent appellate court review of lifetime postrelease supervision ordered in conjunction with a presumptive sentence of imprisonment.
2. Lifetime postrelease supervision imposed under K.S.A. 2009 Supp. 22-3717(d)(1)(G) is not within the presumptive sentence defined by K.S.A. 21-4703(q).
3. A categorical proportionality challenge under the Eighth Amendment to the United States Constitution can be raised for the first time on appeal under the exception for questions of law that are determinative of the case and that arise on proven or admitted facts.
4. Supreme Court Rule 6.02(a)(5) (2013 Kan. Ct. R. Annot. 39-40) provides that a party briefing an issue on appeal must make a reference to the specific location in the record on appeal where the issue was raised and ruled upon. If the issue was not raised below, there must be an explanation why the issue is properly before the court. A party failing to explain why an issue being raised for the first time on appeal is properly before the court risks having that issue deemed waived or abandoned.
5. An appellate court engages in unlimited review of a categorical proportionality challenge to a criminal sentence as being cruel and unusual punishment under the Eighth Amendment to the United States Constitution.
6. In applying a categorical proportionality analysis to an Eighth Amendment cruel and unusual punishment sentence 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. 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, the court must determine in the exercise of its own independent judgment whether the punishment in question violates the United States Constitution.
7. The judicial exercise of independent judgment in determining whether punishment is cruel and unusual requires consideration of the culpability of the category of offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question. In this inquiry the court also considers whether the challenged sentencing practice serves legitimate penological goals.
8. Lifetime postrelease supervision for a first-time offender over age 18 convicted of sexual exploitation of a child for crimes involving possession of pornographic images of children under age 18 is not categorically disproportionate under the Eighth Amendment to the United States Constitution.
Rachel L. Pickering, of Kansas Appellate Defender Office, argued the cause, and Matthew J. Edge and Deborah Hughes, of the same office, were on the briefs for appellant.
Patrick J. Hurley, assistant district attorney, argued the cause, and Jessica Dotter, legal intern, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
[298 Kan. 1076] OPINION
Steven A. Williams pleaded guilty to rape of a child and sexual exploitation of a child. He directly appeals the lifetime postrelease supervision portion of his sexual exploitation sentence. He argues lifetime postrelease supervision is a cruel and/or unusual punishment under § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution when applied to first-time offenders over age 18 convicted of crimes involving possession of pornographic images of children under [298 Kan. 1077] age 18. We hold the sentence is not disproportionate and affirm the sexual exploitation sentence.
But we vacate sua sponte the lifetime postrelease supervision portion of Williams' rape sentence. See State v. Cash, 293 Kan. 326, Syl. ¶ 2, 263 P.3d 786 (2011) (sentencing court has no authority to order lifetime postrelease supervision in conjunction with an off-grid indeterminate life sentence); K.S.A. 22-3504(1) (court may correct an illegal sentence at any time).
Factual and Procedural Background
Williams entered into a plea agreement under which he pleaded guilty to one count of rape of a child and one count of sexual exploitation of a child for offenses occurring in June 2010. At the plea hearing, Williams confirmed the State's factual basis for the sexual exploitation of a child charge by admitting that he possessed, with intent to arouse his sexual desires, an electronic recording depicting a child under the age of 18 engaging in sexually explicit conduct. Williams was 28 years old when the crimes occurred and a first-time offender.
At sentencing, Williams requested a downward departure, citing his lack of criminal history, age, acceptance of responsibility, remorse, substantial psychological impairment of the ability to appreciate the criminality of his conduct or conform his conduct to the requirements of the law, and low to moderate level of predicted recidivism. The district court denied the departure motion. Williams did not argue that lifetime postrelease supervision for sexual exploitation of a child would be a cruel and/or unusual punishment.
For rape of a child, the court sentenced Williams to life imprisonment with a mandatory minimum term of 25 years under Jessica's Law, K.S.A. 21-4643, and to lifetime postrelease supervision. For sexual exploitation of a child, the court sentenced Williams to a concurrent term of 34 months' imprisonment and mandatory lifetime postrelease supervision under K.S.A. 2009 Supp. 22-3717(d)(1)(G).
Williams filed a timely notice of appeal with this court. He argues the lifetime postrelease supervision sentence imposed for sexual exploitation of a child is a cruel and/or unusual punishment under [298 Kan. 1078] § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution. He did not appeal any aspect of his rape sentence.
The State raises three threshold issues: (1) whether this court lacks jurisdiction under K.S.A 21-4721(c)(1) because Williams' challenge is an appeal from a presumptive sentence; (2) whether the challenge is moot because he is subject to mandatory lifetime postrelease supervision for his rape conviction; and (3) whether the challenge was waived when it was not raised to the district court. In the alternative, the State argues mandatory lifetime postrelease supervision is constitutionally appropriate. Inexplicably, Williams did not afford this court any response to these questions. We address the State's threshold issues first.
The State claims this court lacks jurisdiction because Williams received a presumptive sentence. This argument is without ...