State v. Ross

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 104,581

STATE OF KANSAS,
Appellee,

v.

RAYMOND L. ROSS, III,
Appellant.


SYLLABUS BY THE COURT

A sentence of 162 months' imprisonment with lifetime postrelease supervision for
a defendant who committed aggravated indecent liberties with a 4-year-old boy violates
neither § 9 of the Kansas Constitution Bill of Rights nor the Eighth Amendment to the
United States Constitution, under the facts of this case.

Appeal from Saline District Court; DANIEL L. HEBERT, judge. Opinion filed August 31, 2012.
Affirmed.

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

Christina Trocheck, assistant district attorney, Ellen Mitchell, district attorney, and Derek
Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

ROSEN, J.: Raymond L. Ross, III, appeals from the imposition of lifetime
postrelease supervision following his plea of guilty to aggravated indecent liberties with a
child. He contends that the lifetime postrelease supervision constitutes cruel and unusual
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punishment under § 9 of the Kansas Constitution Bill of Rights and the Eighth
Amendment to the United States Constitution. We disagree and affirm his sentence.

According to an affidavit filed by a Salina Police Department investigator, a 4-
year-old boy told his mother that Ross, who was 19 years old, had engaged in sodomy
and oral sex with him in January 2010. The affidavit further alleged that Ross admitted to
oral sexual acts with the boy, although Ross denied engaging in pederasty. Ross entered a
plea of guilty to one count of aggravated indecent liberties with a child, K.S.A. 21-
3504(a)(3)(A). Ross had an extensive criminal history, with 14 convictions spanning a
time from 2001 to 2009, including both adult and juvenile person felonies and
misdemeanor convictions. The charge carries with it a presumptive life sentence with a
mandatory minimum term of 25 years with lifetime postrelease supervision. See K.S.A.
21-4643(a)(1)(C).

Ross argued in presentencing motions that departure from the presumptive
sentence would be appropriate under his circumstances and that imposition of lifetime
postrelease supervision would constitute cruel and unusual punishment under both the
Kansas Constitution and United States Constitution. The court entered a departure
sentence of 162 months, but imposed the statutorily mandated lifetime postrelease
supervision term.

Ross appealed, reiterating his constitutional arguments.

The statutory scheme mandates lifetime postrelease supervision. K.S.A. 21-
4643(a)(1)(C) provides for a term of life imprisonment for aggravated indecent liberties
with a child, with a mandatory minimum term of 25 years. K.S.A. 2009 Supp. 22-
3717(d)(1)(G) provides for lifetime postrelease supervision for persons convicted of
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sexually violent crimes. The statute defines aggravated indecent liberties with a child to
be a sexually violent crime. K.S.A. 2009 Supp. 22-3717(d)(2)(C).

K.S.A. 2009 Supp. 75-5217(c) provides that after conviction of a new felony,
"upon revocation, the inmate shall serve the entire remaining balance of the period of
postrelease supervision even if the new conviction did not result in the imposition of a
new term of imprisonment." K.S.A. 2009 Supp. 75-5217(d) makes a return to custody
discretionary with the Kansas Parole Board upon conviction of a misdemeanor.

As a consequence of these statutes, Ross is subject to mandatory lifetime
postrelease supervision upon the completion of his prison term, and he faces possible
return to prison for life for committing any felony or misdemeanor while under
postrelease supervision. Both the requirements of postrelease supervision and the threat
of imposition of a life sentence upon conviction of a misdemeanor or felony drive Ross'
argument that the statute is unconstitutional.

When determining whether a sentence is cruel or unusual under § 9 of the Kansas
Constitution Bill of Rights, a district court must make both legal and factual
determinations. On appeal, the appellate court applies a bifurcated standard of review:
All of the evidence is reviewed, but not reweighed, to determine whether it is sufficient to
support the district court's factual findings, but the legal conclusions that the district court
draws from those facts are reviewed de novo. State v. Mossman, 294 Kan. ___, Syl. ¶ 1,
281 P.3d 153, 2012 WL 3056041 (filed July 27, 2012).

A statute is presumed constitutional and all doubts must be resolved in favor of its
validity. If there is any reasonable way to construe a statute as constitutionally valid, the
court has the authority and the duty to do so. State v. Laturner, 289 Kan. 727, 735, 218
P.3d 23 (2009); see also State ex rel. Six v. Kansas Lottery, 286 Kan. 557, 562, 186 P.3d
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183 (2008) ("It is not the duty of this court to criticize the legislature or to substitute its
view on economic or social policy; it is the duty of this court to safeguard the
constitution.").

This court has set out a three-part test governing analysis of cruel or unusual
punishment claims under § 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." State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978).

The first prong of the Freeman test requires us to consider the nature of the
offense and the character of the offender, with particular regard to the degree of danger
he or she presents to society. 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.

By the age of 19, Ross already had a category B criminal history. His prior
convictions included multiple convictions for domestic battery and battery on a law
enforcement officer. His current crime of conviction was committed against a 4-year-old
boy, and the crime involved contact with the victim that was unambiguously sexual in
nature.
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A presentence psychological evaluation concluded: "Mr. Ross was finally able to
acknowledge his version of abuse against the child victim. He has no insight into why he
abused the child, though as is often observed in cases such as his, the victim's age is very
close to the age when he himself had been abused. This pattern of re-enacting one's own
abuse is a common pattern in the sex-offender population."

This court has held that a sentence of 18 years at hard labor for possession and sale
of marijuana was not cruel and unusual punishment. State v. Coutcher, 198 Kan. 282, 424
P.2d 865 (1967). A sentence of a minimum of 80 years to life for four counts of criminal
indecent liberties and three counts of aggravated criminal sodomy was not so oppressive
that it constituted an abuse of discretion. State v. Nunn, 247 Kan. 576, 578-80, 802 P.2d
547 (1990). The theft of tobacco cutters valued at $6 could be punished by a confinement
of 5 years at hard labor without violating constitutional restraints. In re Tutt, 55 Kan. 705,
41 P. 957 (1895).

We note that Ross received a departure, reducing his period of incarceration from
life imprisonment with a mandatory minimum term of 25 years to incarceration for 162
months. Even though the terms of his postrelease supervision will expose him to the
potential for reincarceration for life, postrelease supervision itself is less onerous than the
presumptive life sentence. If the life sentence itself would not be cruel or unusual, then
the lighter sentence of lifetime supervision would also not be cruel or unusual.

Sexual crimes committed against minors are particularly heinous and produce
particularly devastating effects on the victims, including physical and psychological
harm. Furthermore, sex offenders pose a high risk of recidivism. See Mossman, 2012 WL
3056041, at *7.

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The evidence before the district court and before this court shows that Ross has a
demonstrated history of violent crimes and that he has little understanding of the gravity
of the crime at issue on appeal. His crime was committed against a very young and
vulnerable victim. The record suggests that Ross constitutes a significant risk to society,
that he will commit crimes of violence again. He can overcome this perception of danger
by refraining from criminal activity following his release, but neither the Kansas
Constitution nor the United States Constitution require that he be afforded an opportunity
to demonstrate his ability and willingness to comply with the law. As we noted in
Mossman: "Postrelease supervision is largely designed to act as a deterrent to future
crime, a goal that is particularly legitimate given sex offenders' higher rate of recidivism."
Mossman, 2012 WL 3056041, at *7.

The district court considered Ross' psychological report, his probationary status
from other offenses, and his criminal history, as well as the victim's age and the proclivity
of sex offenders to reoffend. We conclude that the evidentiary record supports the district
court's findings, and we also conclude that those findings weigh against a determination
that lifetime postrelease supervision is cruel or unusual as it applies to Ross'
circumstances.

This court has recently addressed the second and third Freeman factors as they
relate to lifetime postrelease supervision. We have held that such a sentence is not
constitutionally disproportionate to the sentences imposed for other, possibly "more
serious," crimes in Kansas and is not disproportionate to the punishments imposed in
other jurisdictions for similar offenses. Mossman, 2012 WL 3056041, at *13; State v.
Cameron, 294 Kan. ___, Syl. ¶ 1, 281 P.3d 143 (filed July 27, 2012). Ross does not
produce new arguments inviting reconsideration of those holdings.

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Ross also argues that lifetime postrelease supervision is unconstitutionally cruel
and unusual under the Eighth Amendment to the United States Constitution.

An Eighth Amendment challenge to a term-of-years sentence as disproportionate
and therefore cruel and unusual falls into two general classifications. The first
classification involves arguments that the term of years is grossly disproportionate based
on all the circumstances of a particular case. The second classification encompasses cases
in which the court implements the proportionality standard based on certain categorical
restrictions. State v. Woodard, 294 Kan. ___, Syl. ¶ 2, 280 P.3d 203 (filed July 13, 2012).

When conducting an Eighth Amendment analysis to determine whether a sentence
for a term of years is grossly disproportionate under the circumstances of a particular
defendant's crime, a court initially compares the gravity of the offense with the severity
of the sentence. This analysis may consider the offender's mental state and motive in
committing the crime, the actual harm caused to the victim or to society by the offender's
conduct, any prior criminal history of the offender, and the offender's propensity for
violence. In the rare case in which this threshold comparison leads to an inference of
gross disproportionality, the court then compares the defendant's sentence with the
sentences received by other offenders in the same jurisdiction and with the sentences
imposed for the same crime in other jurisdictions. If this comparative analysis validates
an initial judgment that the sentence is grossly disproportionate, the sentence is cruel and
unusual. Ewing v. California, 538 U.S. 11, 22, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003);
Woodard, 294 Kan. at ___, 280 P.3d at 207.

The United States Supreme Court has held that the Eighth Amendment does not
require strict proportionality between a crime and a sentence; rather, it forbids only
extreme sentences that are grossly disproportionate to crime. Ewing, 538 U.S. at 20-21. A
life sentence can be constitutional, even for a nonviolent property crime. See Rummel v.
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Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980) (upholding a life sentence
with the possibility of parole, imposed under a Texas recidivist statute, for a defendant
convicted of obtaining $120.75 by false pretenses, an offense normally punishable by
imprisonment for 2 to 10 years); Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680,
115 L. Ed. 2d 836 (1991) (upholding a sentence of life without the possibility of parole
for a defendant convicted of possessing more than 650 grams of cocaine, although it was
his first felony offense).

Our analysis under the Freeman factors for the Kansas constitutional challenge
applies with equal force to the first of the classifications for an Eighth Amendment
challenge. Ross has a lengthy criminal history; he violated the personal integrity of a very
young victim; and he showed little understanding of his actions. We conclude that Ross
fails to sustain the threshold requirement of proving gross disproportionality under the
Eighth Amendment to the United States Constitution.

We recently concluded that a sentence of lifetime postrelease supervision under
K.S.A. 22-3717(d)(1)(G) for aggravated indecent liberties with a child is also not
categorically disproportionate, even for first-time sex offenders, and is therefore not cruel
and unusual under the Eighth Amendment. Mossman, 294 Kan. ___, Syl. ¶ 9; Cameron,
294 Kan. ___, Syl. ¶ 3. We find nothing in Ross' argument that would lead us to revisit
that issue.

The sentence imposed by the district court is affirmed.