Review of the judgment of the Court of Appeals in an unpublished opinion filed April 5, 2013.
Appeal from Cloud District Court; KIM W. CUDNEY, judge.
BY THE COURT
1. An issue not adequately briefed is deemed abandoned. It is insufficient in a petition for review to simply request reversal of a portion of a Court of Appeals decision without addressing the underlying analysis and explaining why it is erroneous.
2. The three-part test in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), applies to a determination of whether a sentence of lifetime postrelease supervision under K.S.A. 2014 Supp. 22-3717(d)(1)(G) is cruel or unusual punishment under Section 9 of the Kansas Constitution Bill of Rights.
3. Under the facts of this case, a defendant's sentence of lifetime postrelease supervision for the crime of attempted indecent solicitation of a child is not cruel or unusual punishment under Section 9 of the Kansas Constitution Bill of Rights. The punishment is not so disproportionate that it shocks the conscience and offends fundamental notions of human dignity. Factors leading to this conclusion include: the nature of the offense, which is serious and is a sex crime against a minor that historically has been treated as a forcible or violent felony; and the penological goals of postrelease supervision, which include retribution, deterrence, incapacitation, and rehabilitation. These factors outweigh the lack of strict proportionality with other sentences in Kansas and other jurisdictions, especially given that the sentence is not grossly disproportionate.
Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, argued the cause and was on the briefs for appellant.
Robert A. Walsh, county attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.
BILES, J. JOHNSON, J., dissenting. LUCKERT, J., joins the foregoing dissenting opinion.
Cody Steven Funk appeals from the imposition of lifetime postrelease supervision following his guilty plea and conviction [301 Kan. 926] of one count of attempted indecent solicitation of a child. His plea arises from criminal charges filed against him following his sexual encounter with a 14-year-old girl. Funk contends lifetime postrelease supervision is disproportionate as applied to him, constituting cruel and/or unusual punishment in violation of Section 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution. Both the district court and Court of Appeals rejected his arguments. See State v. Funk, 298 P.3d 1137, 2013 WL 1444718 (Kan. App. 2013) (unpublished opinion), rev. granted October 13, 2013. We affirm.
Factual and Procedural Background
In December 2010, Funk was charged with one count of criminal sodomy, a severity level 3 person felony, in violation of K.S.A. 21-3505. Pursuant to a plea agreement, Funk pleaded guilty to one count of attempted indecent solicitation of a child, a severity level 8 person felony, which carried a lower severity level for sentencing purposes. See K.S.A. 21-3510(a)(1) (enticing, commanding, inviting, persuading, or attempting to persuade a child 14 or more years of age but less than 16 years of age to commit or submit to an unlawful sexual act); K.S.A. 2010 Supp. 21-3301 (attempt; overt act towards perpetrating a crime). Funk's presentence investigation report revealed one prior nonperson felony conviction for burglary and two prior nonperson misdemeanor theft convictions. He was on probation for the burglary conviction when he committed the offense in this case.
Funk filed a motion seeking probation rather than imprisonment. In support of this, he attached a portion of the victim's testimony at a preliminary hearing in another case pending against a different defendant. Funk had waived a preliminary hearing in his case. The district court sentenced him to 18 months' probation, with an underlying 10-month prison term and lifetime postrelease supervision. The district court also required Funk to register as a sex offender for 10 years.
Funk objected to the imposition of lifetime postrelease supervision, and the district court granted him 30 days to submit a motion challenging the constitutionality of the lifetime postrelease supervision. [301 Kan. 927] No evidence was presented at a postsentencing hearing, although Funk's counsel and the State argued the merits. Funk claimed lifetime postrelease supervision was disproportionate as applied to him and, therefore, constituted cruel and/or unusual punishment under Section 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution.
Importantly, defense counsel noted that appellate courts had declined to review these types of constitutional claims because of inadequate findings and urged the district court to make adequate findings--despite the failure to offer evidence on Funk's behalf.
In rejecting Funk's objection, the district court made factual findings based on the preliminary hearing transcript attached to Funk's motion seeking probation, as well as a probable cause affidavit in the case file that contained police accounts of witness statements. From those sources, the district court found:
" 1. On the night of November 6, 2010, the Defendant, Cody Funk and at least three other young men, ages 18 to 20, engaged in sexual acts with a 14 year old girl, HD.
" 2. On the night in question, two of the young men, Julio Mendoza and Kohlton Kumnick, met HD at a local convenience store. HD had been in a fight with her friends and rode around town with the two young men. Eventually they arrived at Kumnick's dorm apartment.
" 3. Funk and Justin Lord were at Kumnick's apartment when HD, Mendoza and Kumnick arrived.
" 4. Mendoza brought out a bottle of alcohol. All four men consumed the Bacardi and urged HD to drink also. HD drank steadily and quickly from the bottle. HD and the four men also 'huffed' from an aerosol can.
" 5. At that point in the evening, all four men believed HD to be 16 years old based upon what she told them.
" 6. Sometime during the evening, a friend stopped by the dorm apartment and observed HD in the bedroom with Mendoza, Funk and Lord. This individual told Kumnick she recognized HD as a freshman in high school and warned Kumnick that HD was too young to be at the dorm apartment.
" 7. After drinking alcohol and huffing air duster, HD began kissing Mendoza and Lord. Funk was sitting on a bed opposite of HD with a computer on his lap.
" 8. Eventually, HD and Mendoza engaged in sexual intercourse on the bed opposite of Funk. Funk remained in the bedroom working on his computer but could hear HD and Mendoza engaging in sexual acts.
[301 Kan. 928] " 9. After some time, HD approached Funk and undid his pants. HD performed oral sex on Funk while Mendoza penetrated HD from behind either vaginally or anally. HD then performed oral sex on Kumnick.
" 10. Eventually the group dressed and went to a party where further inappropriate sexual conduct occurred."
After setting out its findings of fact, the district court acknowledged the legal issues in the case were governed by the three Freeman factors. See State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978). But despite this, its analysis did not follow the Freeman outline and was limited to the following:
" Based upon a review of the facts, the controlling statutes, and case law, this Court finds it is without authority to grant Funk's motion to depart from the statutorily required imposition of life time post release supervision. The Court notes, however, that the facts of this case clearly reflect the injustice of life time post release supervision. An 18 year old young man who allowed a 14 year old girl to voluntarily perform oral sex upon him, without request or force, will suffer the consequences of these actions for the remainder of his adult life."
Parenthetically, we note also that although the district court characterized Funk as an 18-year-old man in its legal conclusion, it made no specific factual finding regarding Funk's age. Our appellate record contains Funk's birth year, but it does not identify the month or day, so we cannot confirm whether he was 18 years old when the crime was committed as mentioned by the district court or 18 or 19 as stated by the panel. It is also unclear from the district court's findings whether Funk believed H.D. was 16 at the time the crime occurred. The court's only findings were that Funk initially believed
H.D. was 16 years old and at least one of the men was later told that she was younger.
Funk filed an untimely notice of appeal, but the Court of Appeals retained jurisdiction after the district court found Funk's attorney failed to perfect the appeal. See Funk, 298 P.3d 1137, 2013 WL 1444718, at *3; see also State v. Ortiz, 230 Kan. 733, 735-36, 640 P.2d 1255 (1982) (noting limited exceptions to general rule that timely filing of notice of appeal is jurisdictional).
[301 Kan. 929] The Court of Appeals
In contrast to the district court's more limited review, the Court of Appeals set out and applied the Freeman factors individually in addressing Funk's Section 9 challenge. Funk, 298 P.3d 1137, 2013 WL 1444718, at *5-11. The panel found the first factor, under which a court examines the nature of the offense and the character of the offender, weighed neither in favor of nor against finding the sentence unconstitutional. The panel observed: " Kansas appellate courts have consistently found that the first Freeman factor weighs against defendants convicted of sex offenses against children." Funk, 298 P.3d 1137, 2013 WL 1444718, at *7.
In support of this, the panel referenced this court's decisions in State v. Ross, 295 Kan. 424, 284 P.3d 309 (2012), State v. Mossman, 294 Kan. 901, 281 P.3d 153 (2012), and State v. Cameron, 294 Kan. 884, 281 P.3d 143 (2012), as well as several Court of Appeals opinions in which the first Freeman factor weighed against the defendant. Funk, 298 P.3d 1137, 2013 WL 144718, at *8 (citing State v. Black, 293 P.3d 815, 2013 WL 517596 [Kan. App. 2013] [unpublished opinion, rev. denied 297 Kan. 1248 (2013)]; State v. Rowley, 293 P.3d 815, 2013 WL 451886 [Kan. App. 2013] [unpublished opinion, rev. denied 297 Kan. 1254 (2013)]; State v. Collins, 288 P.3d 159, 2012 WL 5519088 [Kan. App. 2012] [unpublished opinion, rev. denied 297 Kan. 1249 (2013)]; State v. Genzel, 288 P.3d 159, 2012 WL 5519176 [Kan. App. 2012] [unpublished opinion, rev. denied 297 Kan. 1250]). The panel concluded that " [a]lthough these cases involve facts that arguably are more egregious than Funk's case, they demonstrate Kansas appellate courts' deference to the legislature's policy decision to treat sex offenses against children as sexually violent crimes regardless of the facts of the offense." Funk, 298 P.3d 1137, 2013 WL 1444718, at *8.
Turning to the case-specific facts, the panel noted those weighing in Funk's favor were: (1) his age, H.D.'s age, and that H.D. represented she was 16, which Funk might not have known to be untrue when the crime occurred; (2) there was little evidence Funk encouraged or coerced H.D. into drinking for the purpose of taking advantage of her; (3) Funk did not " knowingly [take] advantage of [301 Kan. 930] the age and experience difference between himself and H.D. or H.D.'s status as a minor" ; (4) Funk's criminal history did not suggest any future threat of a sexual or violent nature; and (5) Funk did not request or force the sexual contact. 298 P.3d 1137, 2013 WL 1444718, at *8. The panel then determined that the facts weighing in the State's favor were: (1) Kansas appellate courts consider sex offenses as serious and should be treated accordingly, even if the minor consented to the activity and there was no violence involved in the commission of the offense; ...