State v. Conrad

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 104,579

STATE OF KANSAS,
Appellee,

v.

KEVIN CONRAD,
Appellant.


SYLLABUS BY THE COURT

Sentencing challenges under § 9 of the Kansas Constitution Bill of Rights are
analyzed through application of the three-part test outlined in State v. Freeman, 223 Kan.
362, 367, 574 P.2d 950 (1978), which considers: (1) The nature of the offense and the
character of the offender, particularly 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.

Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed April 12,
2013. Sentence affirmed in part and vacated in part.

Meryl Carver-Allmond, of Kansas Appellate Defender Office, was on the brief for appellant.

Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, were on the brief for
appellee.
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The opinion of the court was delivered by

MORITZ, J.: Kevin Conrad appeals his sentence of 25 years to life under Jessica's
Law, K.S.A. 21-4643(a)(1)(C). Conrad argues his sentence is unconstitutional because it
is cruel or unusual punishment under § 9 of the Kansas Constitution Bill of Rights and is
contrary to statute because he should be parole eligible after 20 years.

We conclude Conrad's sentence is constitutional and he must serve 25 years before
he is eligible for parole. We do vacate, however, the district court's imposition of lifetime
postrelease supervision.

FACTUAL BACKGROUND

Conrad's convictions arose from his sexual abuse of four children. In return for
his plea to three counts of aggravated indecent liberties with a child and one count of
lewd and lascivious behavior, the State dismissed six additional counts. The district court
sentenced Conrad pursuant to K.S.A. 21-4643(a)(1)(C), imposing a controlling sentence
of 25 years to life. This sentence was based on Conrad's conduct with his 11-year-old
biological daughter, G.R.C. Between September 2006 and January 2007, Conrad forced
vaginal intercourse on G.R.C. several times a month.

The district court imposed concurrent sentences of varying lengths for the three
remaining convictions, each involving a different child victim. Between August 2005 and
June 2006 about twice a week Conrad forced Z.C.C., his 13-year-old stepson, to touch
Conrad's penis or Conrad touched Z.C.C.'s penis without Z.C.C.'s consent. Conrad forced
vaginal intercourse on his stepdaughter, J.D.C., a 9- to 10-year-old girl, repeatedly
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between August 2005 and June 2006, and he forced J.D.C. to touch his penis. Conrad
also exposed his penis to M.J.B., a 9-year-old girl.

Conrad timely filed a notice of appeal, and this court has jurisdiction pursuant to
K.S.A. 22-3601(b)(1) (permitting direct appeal for convictions of off-grid crimes).

ANALYSIS

Conrad's sentence is not cruel or unusual punishment and does not violate § 9 of the
Kansas Constitution Bill of Rights.

Conrad argues his sentence of 25 years to life, prescribed under Jessica's Law, is
cruel or unusual under § 9 of the Kansas Constitution Bill of Rights. After briefs were
filed in this case, we conducted a case-specific analysis under § 9 in State v. Woodard,
294 Kan. 717, 280 P.3d 203 (2012), and rejected Woodard's argument that his Jessica's
Law sentence for a conviction of aggravated indecent liberties with a child was cruel or
unusual punishment.

Standard of Review

Because a district court makes both legal and factual conclusions in reviewing
whether a sentence is cruel or unusual punishment under § 9 of the Kansas Constitution
Bill of Rights, this court applies a bifurcated standard of review. "'[W]ithout reweighing
the evidence, the appellate court reviews the factual underpinnings of the district court's
findings under a substantial competent evidence standard, and the district court's ultimate
legal conclusion drawn from those facts is reviewed de novo.'" State v. Britt, 295 Kan.
1018, 1031, 287 P.3d 905 (2012) (quoting Woodard, 294 Kan. at 720).

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The Freeman Test

Section 9 of the Kansas Constitution Bill of Rights prohibits "cruel or unusual
punishment." Punishment violates § 9 when "it is so disproportionate to the crime for
which it is inflicted that it shocks the conscience and offends fundamental notions of
human dignity." State v. Gomez, 290 Kan. 858, Syl. ¶ 9, 235 P.3d 1203 (2010). We
analyze § 9 challenges using the three-part Freeman test, which examines both the facts
and circumstances of the crime and engages in a broader comparison of sentencing
statutes:

"(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." State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978).

Although a single factor of the Freeman test can direct our conclusion, we
examine each of the factors. See Britt, 295 Kan. at 1032.

The first factor considers the nature of the offense, character of the offender, and
the danger the offender presents to the public. State v. Ross, 295 Kan. 424, 426, 284 P.3d
309 (2012). "Relevant factors 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." 295 Kan. at 426.
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The district court examined specific facts related to Conrad's offense and the
nature of his crime and essentially concluded the first factor did not weigh in Conrad's
favor. The district court pointed out that the legislature proscribed a harsh punishment for
sex offenses against children because it is "heinous conduct" and noted that perpetrators
of these crimes have a great deal of power over their victims, making it difficult for the
victim to stop the abuse and, in some cases, to understand what is happening to them. The
district court also concluded Conrad's own history of abuse increased the likelihood
Conrad would reoffend and that Conrad's conduct caused great injury to his victims.
These factual findings are supported by substantial competent evidence.

On appeal, Conrad argues that the nonviolent nature of the crime and his own
history of being subjected to physical and sexual abuse make the punishment more likely
to be cruel or unusual. However, as we noted in State v. Mossman, 294 Kan. 901, 912,
281 P.3d 153 (2012), sex crimes against minors are historically considered violent even if
no physical force is used. Additionally, the district court considered Conrad's abusive
past and determined that the abuse did not excuse the conduct, but rather made it more
likely Conrad would reoffend.

Further, the facts of the crime and Conrad's character weigh heavily in favor of
finding his sentence not to be cruel or unusual. Conrad's conduct with G.R.C., for which
he received the hard 25 life sentence, was far more heinous than the conviction implies.
For instance, although he was convicted of sexually motivated touching, Conrad raped
his 11-year-old daughter repeatedly over a 5-month period. Further, Conrad's additional
convictions shed light on his character and the danger Conrad presents to society.
Specifically, Conrad was punished for repeatedly raping his 9- to 10-year-old
stepdaughter over a 10-month period, repeated sex acts with his stepson, and exposing
himself to a third child. Significantly, Conrad "enjoyed a position of trust" in some of his
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victims' lives as either their stepfather or father. See Britt, 295 Kan. at 1033. Considering
the facts surrounding the controlling conviction and the circumstances of the additional
convictions, Conrad's punishment was not disproportionate to his crime and the first
Freeman factor weighs heavily in favor of finding Conrad's sentence constitutional.

The second factor of Freeman steps away from the facts of the crime at issue and
compares "the punishment with punishments imposed in this jurisdiction for more serious
offenses." Freeman, 223 Kan. at 367. Here, Conrad makes two arguments.

Conrad first contends Kansas punishes some homicides, such as intentional
second-degree murder, less harshly than aggravated indecent liberties with a child and
therefore his punishment for aggravated indecent liberties with a child is "suspect." This
court, however, has already rejected that argument, and Conrad gives us no reason to
revisit that conclusion. See Woodard, 294 Kan. at 723 (concluding some homicides are
punished more harshly than aggravated indecent liberties and noting "[t]here is no strict
linear order of criminal activity that ranks all homicides as the most serious crimes").

Conrad also argues rape of a child under 14 years of age is punished at the same
level as aggravated indecent liberties with a child even though rape is a more severe
crime, also making the punishment suspect. Conrad points out that when the victim of the
crime is over 14 years of age, the legislature punishes rape more severely than it punishes
crimes not involving penetration, indicating that the legislature considers penetration
more severe than crimes involving touching. But we rejected this distinction in State v.
Newcomb, 296 Kan. ___, ___ P.3d ___ (No. 104,900, filed March 22, 2013).

The final Freeman factor compares the crime's penalty in this state with other
jurisdictions' punishment for the same offense. Theoretically, our conclusion regarding
the third Freeman factor in Woodard, where the crime at issue also was aggravated
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indecent liberties with a child, could be controlling here. In our analysis of the third
Freeman factor in Woodard, however, we examined cases that upheld challenges to
statutes punishing penetration and oral contact rather than touching or fondling. See
Woodard, 294 Kan. at 724-25. As Conrad argues, crimes involving penetration may be
similar crimes but they are not the "same" crime. In State v. Seward, 296 Kan. ___, ___
P.3d ___ (2013) (No. 104,098, filed March 22, 2013), we noted that the third Freeman
factor compares the crime at issue with the same offense in other states, and we expressly
disapproved of Woodard's drift to a comparison of similar offenses. Slip op. at 13.

Nevertheless, Conrad's brief fails to provide this court with adequate information
to compare the crime of aggravated indecent liberties with a child to the same offense in
other states. Significantly, Conrad supplies this court with the punishment for the same
offense for only one other state. For another 12 states, he provides a statutory citation but
no analysis, and at times cites only the sentencing statute and not the crime he argues is
the same offense. Conrad ignores 31 states other than briefly suggesting, without support
or analysis, that these states punish penetration more harshly than they punish touching.

Conrad's brief is inadequate to support his argument that the third factor weighs in
his favor. For this court to compare the punishment for the same offense in other states, it
must consider the range of punishment throughout the country, where states fall along
that range, and where Kansas falls relative to other states. By omitting any statutory
information for most states and providing inadequate information for all but one state,
Conrad fails to support his argument that the third Freeman factor weighs in his favor.
Therefore, we decline to find this factor supports Conrad's argument that his punishment
is unconstitutional.

Because of the egregiousness of Conrad's conduct, the first Freeman factor directs
the outcome in this case. The facts underlying Conrad's crimes and the findings of the
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district court dictate our conclusion that Conrad's sentence is not disproportionate to his
crime and his sentence is constitutional.

The district did not err by sentencing Conrad to 25 years without the possibility of parole
instead of 20 years without the possibility of parole.

Next, Conrad challenges the district court's imposition of a hard 25 sentence,
arguing he should be parole eligible after 20 years instead of 25 years because two
provisions of K.S.A. 22-3717 raise doubt about when he should be eligible for parole.
Compare K.S.A. 22-3717(b)(2) ("an inmate sentenced to imprisonment for an off-grid
offense . . . shall be eligible for parole after serving 20 years") with K.S.A. 22-3717(b)(5)
("[a]n inmate sentenced to imprisonment pursuant to [Jessica's Law] . . . shall be eligible
for parole after serving the mandatory term of imprisonment"); K.S.A. 21-4643(1)(C)
(Jessica's Law provision providing persons convicted of aggravated indecent liberties
with a child must serve 25 years' imprisonment).

But we have already resolved Conrad's challenges in prior Jessica's Law cases.
After examining the statutory provisions at issue here, we concluded there was no
reasonable doubt the legislature intended individuals convicted of aggravated indecent
liberties with a child be eligible for parole after 25 years. See State v. Baptist, 294 Kan.
728, 731-32, 280 P.3d 210 (2012); State v. Cash, 293 Kan 326, 329, 263 P.3d 786 (2011);
State v. Chavez, 292 Kan. 464, 469, 254 P.3d 539 (2011). Here, Conrad must serve 25
years before he is eligible for parole.

The district court improperly sentenced Conrad to lifetime postrelease supervision
instead of parole.

Although not discussed by the parties, at sentencing the district court orally
sentenced Conrad to lifetime postrelease supervision. Defendants sentenced under
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Jessica's Law are not subject to lifetime postrelease supervision and that portion of
Conrad's sentence is illegal. See K.S.A. 22-3717(b)(5); Britt, 295 Kan. at 1035. This
court may sua sponte correct an illegal sentence. State v. Gilliland, 294 Kan. 519, 552,
276 P.3d 165 (2012); see also K.S.A. 22-3504 (providing "[t]he court may correct an
illegal sentence at any time"). Accordingly, we vacate the imposition of lifetime
postrelease supervision.

Sentence affirmed in part and vacated in part.