Appeal from Saline District Court; JARED B. JOHNSON, judge.
BY THE COURT
1. K.S.A. 2013 Supp. 22-3717(d)(1)(G) states that " persons convicted of a sexually violent crime committed on or after July 1, 2006, and who are released from prison, shall be released to a mandatory period of postrelease supervision for the duration of the person's natural life."
2. An offender subject to lifetime postrelease supervision could be confined for the rest of his or her life without the possibility for release if supervision is revoked as a result of a new conviction. This is true even if that conviction does not result in the imposition of a new term of imprisonment.
3. When determining whether a sentence is cruel or unusual under § 9 of the Kansas Constitution Bill of Rights, a district court makes both legal and factual determinations. An appellate court applies a bifurcated standard of review. All the evidence is reviewed, but not reweighed, to determine whether it is sufficient to support the district court's factual findings, but the legal conclusions that the district court draws from those facts are reviewed de novo.
4. A statute is presumed constitutional, and all doubts must be resolved in favor of its validity.
5. Section 9 of the Kansas Constitution Bill of Rights states: " Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted." Our Supreme Court has interpreted § 9 to prohibit punishment so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.
6. There are three factors to weigh when assessing proportionality challenges 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 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.
7. The imposition of lifetime postrelease supervision for the crime of indecent liberties with a child, a sexually violent offense, is not grossly disproportionate to the sentence imposed for other, more serious offenses in Kansas.
8. In this case, the district court's imposition of lifetime postrelease supervision is not so disproportionate to the conviction that it shocks the conscience and offends fundamental notions of human dignity.
9. The concept of proportionality is central to the Eighth Amendment to the United States Constitution. Embodied in the Constitution's ban on cruel and unusual punishments is the precept of justice that punishment for crime should be graduated and proportioned to the offense.
10. There are two ways to succeed on a proportionality claim. The first challenges the sentence as disproportionate given all the circumstances in a particular case. The second way to mount a proportionality challenge is to show that an entire class of sentences is unconstitutionally disproportionate given the severity of the sentence, the gravity of the crime, and the type of offender.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.
Christina Trocheck, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., PIERRON and STEGALL, JJ.
[50 Kan.App.2d 804] Pierron, J.:
Matthew J. Marion entered a plea of nolo contendere to one count of indecent liberties with a child, a severity level 5 person felony. The district court sentenced him to 34 months' imprisonment and a lifetime term of postrelease supervision. Marion appeals, arguing his sentence of lifetime postrelease supervision is grossly disproportionate and therefore violates the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights. We affirm.
On February 12, 2012, 25-year-old Marion traveled from Georgia to Salina to visit his cousin, 14-year-old P.M. Marion and P.M. had met approximately 1 year before at their grandmother's birthday party. Since that time, the two had kept in touch through telephone conversations and Facebook. After a few months, their conversations grew sexual in nature. Marion learned their grandmother was ill and decided to visit P.M. under the pretense of visiting their ailing grandmother. P.M.'s parents allowed Marion to stay at the family's home in the bedroom next to P.M.'s bedroom.
On the evening of February 12, the first night of Marion's stay, he asked P.M. to come to his bedroom after everyone else went to bed. P.M. came to his room as requested. Marion and P.M. talked for awhile and then began to kiss. After approximately 5 minutes, P.M. left and went back to her own bedroom. On February 14, shortly after midnight, P.M. once again went to Marion's bedroom after everyone else in the house was asleep. Marion and P.M. immediately started kissing. Marion began touching P.M.'s breasts under her clothing. About 20 minutes after P.M. entered the bedroom, the two engaged in sexual intercourse, which P.M. later described to police as Marion inserting his penis into her vagina. Marion was on top of P.M. as she lay on her back. P.M. estimated that the incident lasted 30 minutes.
P.M. later told a friend about the incident, but P.M. said that she and Marion had only kissed. The friend told her church pastor, and the pastor in turn contacted P.M.'s mother. P.M.'s mother confronted P.M. and Marion. P.M. eventually admitted to her mother that she had sexual intercourse with Marion. Marion left [50 Kan.App.2d 805] the family's residence before the incident was reported to police. P.M. underwent a sexual assault examination, which indicated bruising to her vaginal area and a tear to her hymen. The sexual assault nurse examiner concluded that it appeared P.M. had engaged in sexual intercourse.
On March 30, 2012, Marion was charged with two counts of indecent liberties with a child, a severity level 5 person felony, and one count of aggravated indecent liberties with a child, a severity level 3 person felony. On October 8, 2012, Marion pled nolo contendere to one count of indecent liberties with a child. The State dismissed the remaining counts, and the parties agreed to jointly recommend that Marion serve a sentence of 34 months' imprisonment. The district court filed an order accepting the plea on October 9, 2012.
Prior to sentencing, Marion filed a motion challenging lifetime postrelease supervision as cruel and unusual punishment under the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution. The district court heard arguments on the motion on December 19, 2012, at Marion's sentencing hearing. The court considered and made detailed findings under the three factors outlined in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978). The court ultimately denied Marion's motion and sentenced him to 34 months' imprisonment and lifetime postrelease supervision.
Marion timely appeals the sentence imposed by the district court.
Marion first argues his sentence of lifetime postrelease supervision is grossly disproportionate and therefore violates the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution. The State responds Marion's sentence does not violate the ...