BY THE COURT
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.
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.
factor of the Freeman test controls, and a court
must address all three factors in its analysis.
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.
of the judgment of the Court of Appeals in an unpublished
opinion filed March 11, 2016.
from Reno District Court; Timothy J. Chambers, judge.
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.
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.
and Procedural Background
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
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.
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.
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.
C.H. arrived at the motel
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.
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.
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.
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
"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
"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."
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