State v. Reed

1

No. 110,226

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ABIGAIL REED,
Appellant.

SYLLABUS BY THE COURT


1.
Whether a sentence is illegal is a question of law over which an appellate court has
unlimited review.

2.
K.S.A. 22-3504(1) allows the court to correct an illegal sentence at anytime. An
illegal sentence includes one that does not conform to the applicable statutory provision
in either the character or the term of authorized punishment.

3.
Once the district court pronounces a legal sentence from the bench, it does not
have jurisdiction to modify that sentence absent statutory language allowing a
modification.

4.
K.S.A. 2011 Supp. 22-3716(b) provides, in pertinent part, that once a probation
violation has been established, the district court may require the defendant to serve the
sentence imposed or any lesser sentence.

2

5.
K.S.A. 2011 Supp. 22-3717(d)(1)(G) provides that a person convicted of a
sexually violent crime committed on or after July 1, 2006, and who is released from
prison, shall be released to a mandatory period of postrelease supervision for the duration
of the person's natural life. A district court's failure to comply with K.S.A. 2011 Supp.
22-3717(d)(1)(G) results in an illegal sentence.

6.
A revocation of probation may lead to the imposition of a lesser sentence.
However, the new sentence cannot be illegal.

7.
The final sentence imposed here, which included lifetime postrelease supervision,
did not violate the Eight Amendment to the United States Constitution.

Appeal from Finney District Court; ROBERT J. FREDERICK, judge. Opinion filed October 31,
2014. Affirmed.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

Tamara S. Hicks, assistant court attorney, Susan Lynn Hillier Richmeier, county attorney, and
Derek Schmidt, attorney general, for appellee.

Before BRUNS, P.J., PIERRON and POWELL, JJ.

PIERRON, J.: Abigail Reed appeals the sentence entered by the district court
following the State's motion to correct an illegal sentence. Reed argues that once the
court ordered the sentence following the revocation of her probation, the court had no
jurisdiction to modify the sentence. Additionally, Reed argues her lifetime postrelease
3

sentence was cruel and unusual punishment based on her conviction for indecent
solicitation of a child. We affirm.

On May 16, 2012, the State charged Reed with criminal sodomy, aggravated
indecent liberties with a child, and indecent solicitation of a child. Reed pled guilty to
indecent solicitation of a child. She fell within the presumptive probation portion of the
sentencing grid. The court sentenced Reed to an incarceration sentence of 18 months and
then ordered probation (intensive supervision) for 24 months. The court also ordered a
postrelease supervision term of 24 months.

On January 14, 2013, the State moved to revoke Reed's probation for violating
curfew, failing to attend meetings, and failing to maintain a residence. The court ordered
Reed to serve her 18-month prison sentence and a 24-month period of postrelease
supervision. On February 14, 2013, the State filed a motion to correct an illegal sentence,
arguing Reed was statutorily required to serve a term of lifetime postrelease supervision.
After a full hearing, the district court granted the State's motion and ordered Reed to
serve a lifetime of postrelease supervision. Reed appeals.

We first address the issue of whether the district court had jurisdiction to modify
Reed's sentence.

Reed argues the sentence imposed on her after the revocation of her probation was
a legal sentence, effective upon pronouncement from the bench, and the court did not
have jurisdiction to modify that sentence. She contends that although Kansas law requires
anyone convicted of a sexually violent crime to be subjected to lifetime postrelease
supervision, Kansas law also authorizes the district court to impose a lesser sentence
when it revokes a defendant's probation. She argues this is what the court did here and,
therefore, the court had no jurisdiction to later modify the term of postrelease supervision
at the State's request.
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Whether a sentence is illegal is a question of law over which we have unlimited
review. State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013). K.S.A. 22-3504(1)
allows the court to correct an illegal sentence at any time. An illegal sentence includes
one that does not conform to the applicable statutory provision in either the character or
the term of authorized punishment. State v. Lawson, 296 Kan. 1084, 1099, 297 P.3d 1164
(2013). Once the district court pronounces a legal sentence from the bench, it does not
have jurisdiction to modify that sentence absent statutory language allowing a
modification. State v. McKnight, 292 Kan. 776, 779, 257 P.3d 339 (2011); see State v.
Guder, 293 Kan. 763, 766, 267 P.3d 751 (2012).

Reed asks us to interpret the interaction of two different statutes in the Kansas
Code of Criminal Procedure: (1) K.S.A. 2011 Supp. 22-3716(b), which provides, in
pertinent part, that once a probation violation has been established, the district court "may
require the defendant to serve the sentence imposed, or any lesser sentence"; and (2)
K.S.A. 2011 Supp. 22-3717(d)(1)(G), which states: "[P]ersons 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." Indecent solicitation of a child—Reed's crime of conviction—is
categorized as a sexually violent crime under K.S.A. 2011 Supp. 22-3717(d)(2)(F).

Reed acknowledges she should have been sentenced to lifetime postrelease
supervision at her original sentencing. Indeed, when a defendant has been convicted of
one of the statutorily defined sexually violent offenses, the district court does not have
discretion to ignore the lifetime postrelease supervision requirement of K.S.A. 2011
Supp. 22-3717(d)(1)(G). State v. Ballard, 289 Kan. 1000, 1012, 218 P.3d 432 (2009);
State v. Baber, 44 Kan. App. 2d 748, 753-54, 240 P.3d 980 (2010), rev. denied 296 Kan.
1131 (2013). A district court's failure to comply with the statute results in an illegal
sentence. 44 Kan. App. 2d at 754. The sentencing court was required to sentence Reed to
5

lifetime postrelease supervision in this case. Because it failed to do so at the original
sentencing hearing, Reed's original sentence was illegal.

Nevertheless, Reed contends that upon revocation of her probation the district
court applied K.S.A. 2011 Supp. 22-3716(b) to impose a lesser sentence, which in this
case was a shorter postrelease supervision term. Thus, she contends, the original illegal
sentence became legal upon the revocation of her probation because the district court had
the discretion to sentence her to a lesser period of postrelease supervision at that point.

Unfortunately for Reed, this is not what happened. At the probation revocation
hearing, the district court revoked Reed's intensive supervision and ordered her "to serve
the balance of the sentence that was imposed upon you at the time of sentencing."
However, because Reed was on presumptive probation and she had committed technical
violations of her probation, the court and the parties discussed whether Reed's postrelease
supervision period remained intact upon revocation. There was no discussion on the
length of Reed's postrelease supervision, just whether it remained intact.

Based on the record, the district court ordered Reed to serve her original illegal
sentence, not a lesser legal one. Thus, we do not need to examine the interplay of the
"any lesser sentence" provision of K.S.A. 2011 Supp. 22-3716(b) and the mandatory
lifetime postrelease supervision for sexually violent offenses provision of K.S.A. 2011
Supp. 22-3717(d)(l)(G).

Reed argues her case is similar to McKnight. In McKnight, the defendant pled no
contest to a drug charge which fell into a border box on the sentencing grid. McKnight
received a legal sentence that was suspended in favor of probation. His probation was
later revoked, and the district court modified his underlying sentence after the revocation
to omit any postrelease supervision based on a misunderstanding of the rules for border
box sentences. The State later moved the court to correct the illegal sentence. Our
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Supreme Court held that the modified sentence, though modified based on a mistake of
law, was a legal sentence and the court did not have jurisdiction to modify it later. 292
Kan. at 783.

In McKnight, the district court imposed a lesser sentence upon revocation of the
defendant's probation. But in our present case, the district court simply ordered Reed to
serve her original sentence. McKnight does not apply.

On the contrary, Ballard is instructive. There, Ballard pled no contest to a charge
of aggravated indecent liberties with a child and was sentenced to 55 months'
imprisonment and 36 months' postrelease supervision. At a hearing 2 weeks later, the
district court modified Ballard's sentence by imposing mandatory lifetime postrelease
supervision. Ballard argued on appeal that the original sentence was legal and therefore
not modifiable after pronouncement because K.S.A. 2006 Supp. 22-3717(d)(1)(A)
required 36 months' postrelease supervision for nondrug severity level 1 through 4
crimes, which would include his crime of conviction. Ballard acknowledged he
committed a sexually violent crime and acknowledged that K.S.A. 2006 Supp. 22-
3717(d)(l)(G) mandated lifetime postrelease supervision for sexually violent crimes, but
he argued either K.S.A. 2006 Supp. 22-3717(d)(1)(A) or (G) could apply to his case and
therefore a postrelease term under either statute would be legal.

The Kansas Supreme Court rejected Ballard's argument, in part because he was
subject to mandatory lifetime postrelease supervision pursuant to K.S.A. 2006 Supp. 22-
3717(d)(1)(G). Because Ballard's original sentence was based on the wrong statute and
was therefore illegal, the district court had jurisdiction to modify it after pronouncement.
289 Kan. at 1012.

Ballard controls. Reed's original sentence was illegal. The district court then
reimposed an illegal sentence rather than imposing a lesser one at the probation
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revocation hearing. A revocation of probation may lead to the imposition of a lesser
sentence. However, the new sentence cannot be illegal. Thus, the district court had
jurisdiction later to correct Reed's illegal sentence under K.S.A. 22-3504(1), and the
district court did not err in doing so.

We also need to address the question of whether Reed's sentence violated the
Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution
Bill of Rights.

Reed asserts that lifetime postrelease supervision for a conviction of indecent
solicitation of a child is categorically disproportionate in violation of the Eighth
Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of
Rights. She bases her argument on the assertions that indecent solicitation (1) does not
involve the victim and the offender engaging in any sexual act, and (2) the victim was 14
years old but less than 16 years old. In her categorical disproportionate analysis, Reed
argues there is a national consensus against lifetime postrelease supervision and the
courts can exercise independent judgment to find that none of the penological goals of
retribution, deterrence, incapacitation, and rehabilitation are met with Reed's harsh
sentence.

Regarding § 9 of the Kansas Constitution Bill of Rights, our Supreme Court has
adopted the three-part test from State v. Freeman, 223 Kan. 362, Syl. ¶ 2, 574 P.2d 950
(1978), to determine whether a sentence of lifetime postrelease supervision is cruel or
unusual punishment. State v. Mossman, 294 Kan. 901, Syl. ¶ 4, 281 P.3d 153 (2012). In
doing so, we consider: (1) the nature of the offense and the character of the offender in
regard to the degree of danger presented to society; (2) the comparison of the punishment
at issue with other punishments in Kansas for more serious crimes; and
(3) the comparison of the penalty with punishments in other jurisdictions for the same
offense. 294 Kan. at 908; Freeman, 223 at 367.
8


Reed's § 9 argument consisted of only quoting the state constitutional language of
§ 9 of the Kansas Constitution Bill of Rights prohibiting cruel or unusual punishment,
followed by the court's interpretation in State v. McDaniel & Owens, 228 Kan. 172, 183,
612 P.2d 1231 (1980) (quoting Freeman, 223 Kan. at 367), that such punishment
"'shocks the conscience and offends fundamental notions of human dignity.'" Reed also
surveyed nationwide postrelease supervision laws for sexual offenses—in line with the
third Freeman factor—but only for the purpose of arguing that there is a national
consensus against lifetime postrelease supervision for this class of offense. Reed also
briefly argued her postrelease sentence was harsher than what someone would receive for
second-degree murder. Reed made no attempt to demonstrate the Freeman test was met
here.

The Kansas Supreme Court recently declined to review a defendant's § 9 claim
when the defendant failed to argue the Freeman factors and only mentioned Freeman in
the context of the standard of review. See State v. Williams, 298 Kan. 1075, 1083-84, 319
P.3d 528 (2014). When a litigant fails to adequately brief an issue, it is deemed
abandoned. State v. Rojas-Marceleno, 295 Kan. 525, 543, 285 P.3d 361 (2012).

The Williams court further noted that because the Freeman test involves both legal
and factual inquiries, appellate courts cannot consider § 9 claims in the absence of district
court factfinding and analysis. 298 Kan. at 1084. Here, at the hearing on the State's
motion to correct an illegal sentence, Reed's counsel argued lifetime postrelease
supervision would be cruel and unusual punishment considering Reed's age and the age
and consent of the victim. Counsel argued lifetime postrelease should be for the
"hardcore sexual predators in our society." The district judge stated he was going to
follow the statutes and caselaw and was required to impose lifetime postrelease
supervision. There were no findings of fact made by the district court to aid us in our
review of the Freeman factors.
9


Supreme Court Rule 165 (2013 Kan. Ct. R. Annot. 265) requires the district court
to make adequate findings of fact and conclusions of law on matters submitted to it
without a jury. A defendant who wishes to lodge a constitutional challenge to a
sentencing statute must make sure the district judge makes adequate findings and
conclusions, even if it means filing a motion invoking the judge's duty under Rule 165.
State v. Seward, 289 Kan. 715, 720-21, 217 P.3d 443 (2009). Reed's failure to pursue her
§ 9 claim with the district court forecloses our appellate review of the issue.

Reed's sentence was not categorically disproportionate under the Eighth
Amendment either. In Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d
825 (2010), the United States Supreme Court set the standard for Eighth Amendment
proportionality challenges. It divided the challenges into two classifications: (1) those
challenging the length of a term-of-years sentence given all the circumstances of a
particular claim, and (2) those in which the Court implements the proportionality
standards according to certain categorical restrictions. 560 U.S. at 59. Claims in the first
classification are inherently fact-specific and cannot be raised on appeal absent findings
of fact and conclusions of law from the district court. State v. Gomez, 290 Kan. 858, 864,
235 P.3d 1203 (2010). On the other hand, a categorical constitutional analysis under the
Eighth Amendment involves questions of law and may be raised on appeal in the absence
of any factual findings from the district court. State v. Ruggles, 297 Kan. 675, 679, 304
P.3d 338 (2013) (quoting Mossman, 294 Kan. at 925; citing Gomez, 290 Kan. at 866).
This court has unlimited review of questions of law. Mossman, 294 Kan. at 925.

Because the district court did not make findings of facts or conclusions of law
upon which this court could rely for appellate purposes, Reed's Eighth Amendment
challenge to the lifetime postrelease supervision portion of her sentence can only be
addressed under the second classification—as a purely legal, categorical proportionality
challenge. The United States Supreme Court has identified three subcategories of
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categorical constitutional challenges: (1) those considering the nature of the offense, (2)
those considering the characteristics of the offender, and (3) those that combine the first
two subcategories by considering a particular type of sentence as it applies to an entire
class of offenders who have committed a range of crimes. Graham, 560 U.S. at 60-61.

Reed's categorical constitutional argument asserts that the Eighth Amendment
categorically prohibits the imposition of lifetime postrelease for a sex offense in which
the offender and the victim do not engage in sexual acts and the victim is 14 or more
years of age but less than 16 years of age. This argument appears to fall into subcategory
3, which looks at both the nature of the offense and the characteristics of a class of
offenders.

The United States Supreme Court has tended to categorize classes of offenders by
broad characteristics, such as defendants under the age of 18 or those with low range
intellectual functioning. See Mossman, 294 Kan. at 928-29. The record here indicates
Reed was 18 years old at the time she committed these offenses. She therefore lacks
standing to make the argument that lifetime postrelease supervision is unconstitutional as
applied to offenders under the age of 18. See State v. Coman, 294 Kan. 84, 90-91, 273
P.3d 701 (2012) (holding that an offender convicted under the bestiality portion of the
criminal sodomy statute does not have standing to challenge the constitutionality of the
portion of the statute that criminalizes homosexual conduct); State v. Thompson, 221
Kan. 165, 172, 558 P.2d 1079 (1976) (holding that unconstitutional government action
can only be challenged by a person directly affected; it cannot be challenged by one
invoking the rights of third parties).

Reed's arguments regarding the nature of the offense hinge on the fact that the
offender and the victim did not engage in sexual acts and the victim is 14 or more years
of age but less than 16 years of age. But even if those facts had been established, we
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would not narrow our categorical analysis to that degree, as shown by the Kansas
Supreme Court's decision in Mossman.

In Mossman, the defendant categorically challenged the constitutionality of
lifetime postrelease supervision for aggravated indecent liberties with a child. Mossman
asked the court to limit the range of crimes considered to those involving sex with a child
who is 14 or 15 when the crime is committed without any element of force, coercion,
prostitution, or pornography. While the United States Supreme Court has narrowed the
categories somewhat in reference to the nature of a crime, such as the rape of an adult
where the age of the victim was not an element, the Kansas Supreme Court noted that it
had never refined its categories to the degree requested by the defendant. Thus, it
conducted its analysis using Mossman's offense—aggravated indecent liberties with a
child—as the nature of offense. It did so because Mossman's requested categorization
was "so case-specific" it tended to obliterate the distinction between a case-specific
analysis and a categorical one. 294 Kan. at 928.

State v. Cameron, 294 Kan. 884, 281 P.3d 143 (2012), involved the use of lifetime
postrelease supervision for a man convicted of aggravated indecent solicitation of a child.
Cameron solicited sex acts with a 12-year-old female victim. He sought to describe his
class of offenders as those who committed "a sex offense, not involving pornography,
where the offender and the victim do not engage in physical conduct, much less a
physical sexual act." 294 Kan. at 896. The court noted that Cameron had touched his
victim but, regardless, it found there was no "basis for considering a classification of an
offense that is any narrower than the crime of conviction—aggravated indecent
solicitation of a child." 294 Kan. at 897.

Reed's conviction was for indecent solicitation of a child. K.S.A. 2011 Supp. 21-
5508(a)(1) defines this offense as "enticing, commanding, inviting, persuading or
12

attempting to persuade a child 14 or more years of age but less than 16 years of age to . . .
[c]ommit or to submit to an unlawful sexual act."

Much like Mossman and Cameron, Reed asks us to narrow the nature of the
offense so as to narrow the crime of her conviction to the point that her argument is no
longer a categorical argument, but one based on specific facts which have never been
determined by the district court. In considering Reed's challenge to lifetime postrelease
supervision, the district court was never asked to determine the consensual nature of the
act or the nature of the solicitation. Because Reed entered a plea of no contest to these
offenses, she did not admit to the facts as proffered by the State at her plea hearing.
Accordingly, we will consider the nature of the offense to be Reed's offense of
conviction—indecent solicitation of a child—and refrain from restricting the category
further. See Williams, 298 Kan. at 1087 (finding that the category of offense described as
"'crimes involving possession of pornographic images [of a child] under age 18'" did not
narrow the offense of sexual exploitation of a child as defined by the legislature);
Cameron, 294 Kan. at 897.

Pursuant to Graham, when considering whether lifetime postrelease supervision is
categorically unconstitutional as applied to a term-of-years sentence for those convicted
of indecent solicitation of a child,

"[t]he Court first considers 'objective indicia of society's standards, as expressed in
legislative enactments and state practice' to determine whether there is a national
consensus against the sentencing practice at issue. [Citation omitted.] Next, guided by
'the standards elaborated by controlling precedents and by the Court's own understanding
and interpretation of the Eighth Amendment's text, history, meaning, and purpose,'
[citation omitted], the Court must determine in the exercise of its own independent
judgment whether the punishment in question violates the Constitution. [Citation
omitted.]" 560 U.S. at 61.

13

Community consensus is entitled to great weight but is not itself determinative of
the cruel and unusual issue raised here. Williams, 298 Kan. at 1087. As noted in
Mossman, the task of interpreting the Eighth Amendment categorical analysis required
this court to consider the culpability and characteristics of the offender in light of the
crime and to examine the severity of the punishment at issue, including whether the
sentence serves legitimate penological interests. 294 Kan. at 929. Retribution, deterrence,
incapacitation, and rehabilitation are legitimate penological interests. Graham, 560 U.S.
at 71.

Reed argues there is a national consensus against lifetime postrelease supervision
for sex offenses, noting that only five states, including Kansas, impose lifetime
postrelease supervision for this "class of offenses." Kansas courts have consistently relied
on United States v. Williams, 636 F.3d 1229 (9th Cir.), cert. denied 132 S. Ct. 188
(2011), when considering categorical challenges to sentences for sex offenses. See
Williams, 298 Kan. at 1088-90; Mossman, 294 Kan. at 929-30; Cameron, 294 Kan. at
897-98. In Williams, the defendant pled guilty to receipt of child pornography. Analyzing
the defendant's constitutional challenge to his sentence pursuant to Graham, the court
found that "objective indicia" suggests society is comfortable with lifetime supervised
release for sex offenders, noting that such sentences are common. 636 F.3d at 1233-34.

In Mossman, the Kansas Supreme Court surveyed other state laws imposing
lifetime postrelease supervision on those convicted of offenses similar to the Kansas law
of aggravated indecent liberties with a child. 294 Kan. at 917-20. The Mossman court
stated:

"[I]t seems fair to say that less than half of states provide for lifetime postrelease
supervision of some or all sex offenders and, because several states have a mechanism for
termination of the postrelease supervision under certain conditions, only a handful of
states impose punishment as absolute as Kansas' requirement. Nevertheless, Kansas is not
14

alone in imposing mandatory lifetime postrelease supervision for crimes such as
Mossman's, and we are not aware of any court that has found lifetime postrelease
supervision to be cruel and unusual punishment." 294 Kan. at 920.

Reed compares her crime to more serious off-grid offenses and points out that
individuals convicted of those offenses do have the option to be released or discharged
from parole. In Cameron and Mossman, our Supreme Court compared the punishment for
the crimes at issue in those cases with the punishments for other crimes in Kansas and
then compared the penalties imposed by other states for similar offenses. Cameron, 294
Kan. at 892-94; Mossman, 294 Kan. at 912-21. The court in Cameron specifically
rejected the arguments comparing lifetime postrelease supervision to sentences for crimes
such as second-degree murder, noting that lifetime postrelease supervision, although
resulting in a lengthy cumulative sentence, "is not as harsh a punishment as imprisonment
and is aimed at safely integrating a sex offender into society and protecting the public."
Cameron, 294 Kan. at 896; see Mossman, 294 Kan. at 911-12.

The Kansas Supreme Court has not yet changed course on this portion of its
analysis. See Williams, 298 Kan. at 1088-90; Mossman, 294 Kan. at 929-30; Cameron,
294 Kan. at 897-98. Because Kansas considers indecent solicitation of a child to be a
sexually violent offense, Reed's crime of conviction falls squarely into this analysis. We
are duty bound to follow Kansas Supreme Court precedent regarding the imposition of
lifetime postrelease supervision following convictions of sexually violent crimes. State v.
Capps, No. 107, 361 2013 WL 1444501, *2 (Kan. App.) (unpublished opinion), rev.
denied 291 Kan. 1249 (2013). That duty applies here.

The Kansas Supreme Court has also looked to the Ninth Circuit Court of Appeals
for guidance on whether lifetime postrelease supervision serves the legitimate
penological goals of retribution, deterrence, incapacitation, and rehabilitation for the
second part of this analysis. The Williams court found:
15


"Rehabilitation and incapacitation are central purposes of the criminal justice system, and
they are particularly critical here given the propensity of sex offenders to strike again.
Supervised release can further the end of rehabilitating sex offenders. For instance, in this
case, the express conditions of supervised release will require [the defendant] to receive
sex offender treatment and to avoid situations where [the defendant] may be tempted to
offend again. Relatedly, supervised release helps incapacitate sex offenders by keeping
them under the watchful eye of probation officers who may be able to detect problems
before they result in irreparable harm to innocent children." 636 F.3d at 1234.

Our Supreme Court has found this conclusion applies equally to those sentenced in
Kansas for sex offenses. See Williams, 298 Kan. at 1089; Mossman, 294 Kan. at 930;
Cameron, 294 Kan. at 898. The Ninth Circuit's analysis in Williams applies equally to
Reed's case as well. Lifetime postrelease supervision for Reed's offense serves the valid
penological objectives of deterring such conduct and in incapacitating and rehabilitating
the offender.

Lifetime postrelease supervision for the offense of indecent solicitation of a child
is not categorically disproportionate and, therefore, is not cruel and unusual punishment
under the Eighth Amendment.

Affirmed.