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State v. Riffe

Supreme Court of Kansas

June 8, 2018

State of Kansas, Appellant,
Johnathan L. Riffe, Appellee.



         Section 9 of the Kansas Constitution Bill of Rights prohibits any punishment that, although not cruel or unusual in its method, is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.


         Kansas courts consider the following three factors from State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950');">574 P.2d 950 (1978), when analyzing whether a sentence is so disproportionate that it is constitutionally impermissible under section 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.


         No one factor of the Freeman test controls, and a court must address all three factors in its analysis.


         An appellate court reviews the district court's factual findings regarding the Freeman factors for substantial competent evidence. It reviews the legal conclusions drawn from those factual findings de novo.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed March 11, 2016.

          Appeal from Reno District Court; Timothy J. Chambers, judge.

          Daniel D. Gilligan, assistant district attorney, argued the cause, and Stephen D. Maxwell, senior assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, were on the brief for appellant.

          Patrick H. Dunn, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellee.

          ROSEN, J.

         Johnathan L. Riffe contends a sentence of lifetime postrelease supervision would be unconstitutional as applied to him. The district court agreed, and as a result ordered a reduced term of 10 years of postrelease supervision. The Court of Appeals reversed and directed the district court to impose lifetime postrelease supervision. We conclude that the district court made a legal error in its analysis and the Court of Appeals erred when it did not remand the case for consideration under the proper standard. We therefore reverse the Court of Appeals and remand to the district court with directions.

         Factual and Procedural Background

         On October 30, 2010, Riffe went to a bar called Grand Slam that was attached to a Ramada hotel. There, he met C.H. Events from that night led to Riffe's conviction of aggravated sexual battery. C.H. and Riffe have different accounts of what occurred. We include both of their accounts and a description of the events that took place after the police became involved.

         C.H.'s description

         C.H. testified that at some point during the night, she decided she wanted to leave Grand Slam and go home, and Riffe offered to give her a ride. C.H. accepted the ride, and she and Riffe got in his truck and left the bar. C.H. began giving Riffe directions to her house. Riffe eventually stopped following C.H.'s directions and pulled into a parking lot, where he stopped his truck. Riffe dragged C.H. out of the truck by her hair and began ripping C.H.'s clothing off of her. Riffe pinned C.H. against the back of the truck and slammed her head into the tailgate. Riffe then undid his pants and tried to rape C.H. while she scratched and fought him. C.H. eventually kicked Riffe, got away, and began running until she found a motel. C.H. ran into the motel crying for help.

         Riffe's description

         Riffe testified that C.H. talked and flirted with him throughout the night while the two were at Grand Slam. Riffe and C.H. went outside the bar to the patio and began kissing and "heavy petting, " and C.H. told him they should leave together. After trying, unsuccessfully, to enter Riffe's friend's hotel room at the Ramada, Riffe and C.H. got into Riffe's truck, and C.H. began giving him driving directions. C.H. began undressing until she was only wearing a bra and jacket. C.H. indicated that she and Riffe could not go to her house, and Riffe understood this to mean that she lived with her parents.

         Riffe eventually stopped the truck in a parking lot so he could urinate. After he urinated, Riffe walked to the passenger side of the truck and opened the door. C.H. fell out, head first, onto the concrete. Riffe decided C.H. was so intoxicated that he should get her dressed and take her home, so he moved her to the tailgate of the truck to dress her. When Riffe tried to put her underwear on her, C.H. became upset and kicked him. Riffe told C.H. that he had to get her dressed before he took her home, but C.H. started swinging at him and then jumped out of the truck. Riffe sat down on the tailgate to collect himself, and when he got up and walked around the truck, C.H. was gone. Riffe began driving around looking for C.H. When he could not find her, he returned to the bar to ask his friends and C.H.'s friends to help him look for her. When Riffe got to the bar, C.H.'s friends were not there, and his friend was too drunk to help, so Riffe decided to stay at the bar and have a few drinks and wait for someone who knew C.H. Eventually, Riffe decided he was too drunk to drive around looking for C.H. so he returned to the Ramada where he was staying.

         After C.H. arrived at the motel

         When C.H. arrived at the motel, police were called and officers responded. C.H. had red areas on her neck, marks on her stomach and pant line, and bumps along her hairline. One of the officers located Riffe in the parking lot of the Ramada and observed a woman's shoes and tights on the passenger seat of Riffe's truck. He had earlier located C.H.' other clothes in the parking lot where Riffe had stopped his truck. Another officer spoke with Riffe and observed a bleeding scratch on Riffe's neck. C.H. eventually arrived at the Ramada and identified Riffe as her attacker.

         Riffe was charged with aggravated kidnapping, attempted rape, and aggravated sexual battery. The jury acquitted Riffe of aggravated kidnapping and attempted rape but convicted him of aggravated sexual battery. On September 30, 2011, the district court sentenced Riffe to 47 months of imprisonment and 24 months of postrelease supervision.

         On September 17, 2014, the State filed a motion to correct an illegal sentence, arguing that Riffe should have been sentenced to lifetime postrelease supervision pursuant to K.S.A. 2010 Supp. 22-3717(d)(1)(G). Riffe filed a response challenging the constitutionality of lifetime postrelease supervision as applied to him. He argued that the sentence would be cruel and unusual punishment under the Eighth Amendment to the United States Constitution and section 9 of the Kansas Constitution Bill of Rights.

         At a resentencing hearing, the parties argued the constitutionality of lifetime postrelease as it applied to Riffe but presented no evidence. After hearing counsel's arguments, the district court concluded that lifetime postrelease supervision was unconstitutional under the Kansas Constitution as applied to Riffe. However, instead of denying the State's motion and leaving in place the originally imposed term of 24 months, the court resentenced Riffe to a period of 10 years' postrelease supervision, deeming that to be the "outer limits of what would constitute punishment that is not constitutionally cruel and unusual and will protect society." In response to the State's request that the district judge elaborate on his factual findings and legal conclusions, the district judge filed the following "Findings of Fact" after concluding the hearing:

"The Defendant following jury trial was convicted of the offense of Aggravated Sexual Battery. The Defendant was found not guilty of the offenses of Aggravated Kidnapping and Attempted Rape. On September 30, 2011, the Defendant was sentenced to the aggravated guidelines sentence of 47 months in the custody of the Secretary of Corrections. The Defendant's motions for durational and dispositional departure were denied and the sentence was served.
"The Defendant was also sentenced to a postrelease term of 24 months. The presentence investigation listed 24 months as the appropriate term of postrelease. The Kansas legislature had previously amended K.S.A. 22-3717 to require lifetime postrelease for convictions of sexually related offenses. Apparently the amendment was made late in the legislative session not providing time for the amendment to be included in legislative updates to attorneys, judges, and court service offices.
"Presentence reports were prepared erroneously in relation to postrelease for a period of several years without the error being noticed or corrected by either trial judges, attorneys, or court service officers. It appears over the last several years in excess of 800 cases statewide were improperly sentenced without a lifetime postrelease being imposed as required by the amended statute.
"The above captioned matter is one such case. To correct the error, the Defendant was resentenced to correct the illegal sentence on April 27, 2015. Prior to the resentencing the Defendant filed a motion to attack the constitutionally [sic] of imposing a lifetime postrelease.
"An attack on the constitutionality of lifetime postrelease can be made on either of two grounds, categorically or case specific. Numerous appellate cases have dealt with the categorical constitutional attack and have upheld the constitutionality of 22-3717 on that ground. The court found a lifetime postrelease under the fact specifics of this case would be unconstitutional utilizing the rationale as set out in STATE v. PROCTOR, 47 Kan.App.2d 889 (2012)[.] After argument of counsel, the Court resentenced the Defendant to a ten year postrelease indicating the Court's factual findings would be filed of record.
"The Court in no way minimizes the seriousness of the crime of conviction. The Court imposed the aggravated sentence and denied motions for durational and dispositional departure. The sentence was served.
"The Defendant was not convicted by jury of the charged offenses of Aggravated Kidnapping and Attempted Rape. The post release for Aggravated Sexual Battery was increased from two years to life by the amendment of 22-3717. The Defendant would have fallen in a border box on the sentencing grid had it not been for a pair of twenty-two year old convictions for burglary and drugs. Past the age of 18 the Defendant had no felony convictions until the present crime of conviction. He is now in his early to mid 40s being 39 at the time of the commission of the offense.
"Since the commission of the offense the Defendant has gotten married. He has custody of and has raised and is raising two sons from a prior marriage. He has a good work history. The Defendant is required to register as a sex offender. The goal of lifetime postrelease in regard to sexual crimes is to prevent recidivism. The Defendant does not have a history of sex crimes beyond the present crime of conviction. At the time of the offense he was not married, had been working out-of-state and was at a bar prior to the offense. The Defendant had no problems in prison or on postrelease.
"Again, the factors do not mitigate the seriousness of the offense but indicate the Defendant is not a repeat sex offender or an incorrigible recidivist."

         The State appealed the district court's decision. The Court of Appeals concluded that lifetime postrelease supervision was constitutional, vacated in part the sentence, and remanded with directions to impose lifetime postrelease supervision. State v. Riffe, No. 113, 746, 2016 WL 937869 (Kan. App. 2016) (unpublished opinion). Riffe petitioned for this court's review, arguing that the Court of Appeals erred when it reached the merits of the State's argument because the State failed to comply with Supreme Court Rule 6.02(a)(5) (2018 Kan. S.Ct. R. 34). In the alternative, Riffe argued that the Court of Appeals erred ...

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