State v. Seward

1
IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 100,263
STATE OF KANSAS,
Appellee,

v.

ROY SEWARD,
Appellant.

SYLLABUS BY THE COURT

1.
A constitutional issue generally cannot be asserted for the first time on appeal.

2.
Appellate courts do not make factual findings but review those made by district
courts.

3.
Supreme Court Rule 165 (2008 Kan. Ct. R. Annot. 235) places the primary duty
for arriving at adequate findings and conclusions on the district judge. A defendant who
wishes to appeal on the basis of a constitutional challenge to a sentencing statute must,
2
however, ensure that the findings and conclusions by the district judge are sufficient to
support appellate argument by the filing of a motion invoking the judge's duty under Rule
165, if necessary.

4.
The standard of review on the denial of a sentencing departure is abuse of
discretion. Judicial discretion is abused when no reasonable person would take the view
adopted by the district judge.

5.
When a district judge orally reviews mitigating and aggravating factors advanced
by a defendant and the State, engaging in an appropriate weighing of the competing
considerations, the defense demonstrates no abuse of discretion in denial of its departure
motion.

Appeal from Saline district court; RENE S. YOUNG, judge. Opinion filed
October 2, 2009. Affirmed in part and reversed and remanded in part.

Rachel L. Pickering, of Kansas Appellate Defender Office, argued the cause and
was on the brief for appellant.
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Christina Trocheck, assistant county attorney, argued the cause, and Ellen
Mitchell, county attorney, and Steve Six, attorney general, were with her on the brief for
appellee.

The opinion of the court was delivered by

BEIER, J.: This is a sentencing appeal after defendant Roy Seward entered guilty
pleas to two of eight charges, one count of rape and one count of aggravated criminal
sodomy. The victim was Seward's young stepdaughter. Seward received concurrent hard
25 sentences under K.S.A. 21-4643 (Jessica's Law).

This appeal originally asserted that the sentences under Jessica's Law were cruel
and/or unusual under the Eighth Amendment to the United States Constitution and
Section 9 of the Kansas Constitution Bill of Rights. Since our decisions in State v.
Ortega-Cadelan, 287 Kan. 157, 194 P.3d 1195 (2008), and State v. Thomas, 288 Kan.
157, 199 P.3d 1265 (2009), Seward has filed two Supreme Court Rule 6.09 (2008 Kan.
Ct. Rule Annot. 47) letters of additional authority; he now seeks remand to the district
court for factual findings and conclusions of law under the rubric set forth in State v.
Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978). Seward also challenges the district
judge's decision denying his motion for a downward durational departure.
4

The parties agreed on the record before the district judge that Seward made clear
during plea negotiations that he intended to preserve his right to appeal the
constitutionality of off-grid sentencing under Jessica's Law.

Seward's departure motion before the district court argued that he should receive a
downward durational departure to a guidelines sentence because: (1) There were only two
misdemeanors on his criminal record and those convictions had occurred more than 10
years ago; (2) he accepted responsibility for his crimes by pleading guilty and confessing
to law enforcement; (3) he has a strong desire to receive treatment; (4) he "has
demonstrated extreme remorse and regret for his actions"; and (5) "[t]he life
imprisonment sentence provided for by 'Jessica's Law,' K.S.A. 21-4643, is
disproportionate and cruel and unusual under the state and federal constitutions."

Seward's motion also recited the results of a sex offender evaluation conducted by
A. Elissa Hilyard. Hilyard relied upon a clinical interview and results from
administration of several testsBthe Static 99, the Level of Service InventoryBRevised
(LSI-R), and the Sex Offender Needs Assessment Rating (SONAR). Hilyard's report
stated that the Static 99 placed Seward in the medium-low risk category, with a 16
percent chance that he would reoffend in the next 15 years. The LSI-R placed Seward in
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the moderate risk/needs category. The SONAR also rated Seward as a moderate risk.
Hilyard's report recounted that Seward admitted the victim performed oral sex on him two
times but that Seward denied having sexual intercourse with her.

Hilyard recommended that Seward:

"1. Enter into a sex offender treatment program and successfully
complete it.

"2. Have no contact with minors.

"3. Take monitoring polygraphs to ensure his compliance and
safety in the community.

"4. Increase his positive, social activities and have more positive
interactions with peers his own age.

"5. Have no sexually explicit materials; no internet access.

"6. Take frequent and random [urinalyses] for substance use."

At the sentencing hearing, defense counsel repeated the arguments from the
written motion and entered Hilyard's report into evidence pursuant to stipulation. No
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further evidence was offered. Counsel made only the following brief reference to the
alleged unconstitutionality of Jessica's Law:

"And lastly, I would make an objection, and as part of the plea
agreement, the State stated that the Defense could object to the
oppressive nature of the life imprisonment that goes along with this
statute, the constitutionality, and we do intend to appeal that and that was
part of the plea agreement so I would like to make that part of the record
so we are able to appeal that issue."

Seward, for his part, apologized for his actions and sought leniency.

In response, the State argued that there were no substantial and compelling reasons
to depart. The prosecutor argued several aggravating factors: (1) the nature of the abuse;
(2) Seward's position of authority as the victim's stepfather and his caution that she tell no
one; and (3) the existence of a medical finding that the victim had experienced an injury
to her hymen. The State also contended that Hilyard's assessment of Seward's future
likelihood of reoffending was inaccurate because Seward had been untruthful during his
evaluation, minimizing and omitting the fact that he had engaged in sexual intercourse
with the victim and had penetrated her rectum.

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The district judge determined that there were no substantial and compelling
reasons for a downward durational departure. The judge said nothing in response to
Seward's constitutional challenges to Jessica's Law.

The record before us reflects no subsequent oral or written defense motion for
additional district court findings and conclusions on the constitutional claims under
Supreme Court Rule 165 (2008 Kan. Ct. Rule Annot. 235).

Constitutional Challenges to Jessica's Law

Ordinarily, constitutional challenges to a statute raise questions of law subject to
unlimited appellate review. State v. Allen, 283 Kan. 372, 374, 153 P.3d 488 (2007). But
two preliminary questions require attention before the merits can be reached here. The
first is whether Seward and his counsel preserved these questions for appeal. The second
is whether the factual record before this court is adequate to support any legal ruling by
us.

In Ortega-Cadelan, we reinvigorated the rule that a constitutional issue generally
cannot be asserted for the first time on appeal, specifically examining the justification for
an exception to that rule when the issue was a similar challenge to Jessica's Law. The
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defendant conceded that he had not raised the issue in the district court. We determined
that no exception applied and refused to consider the issue. Ortega-Cadelan, 287 Kan. at
161; see also State v. Spotts, 288 Kan. 650, Syl. & 1, 206 P.3d 510 (2009) (constitutional
challenge to Jessica's Law not properly before this court when raised for first time on
appeal).

This case is different. Seward's federal and state constitutional challenges to
Jessica's Law are no surprise to the State. They evidently were mentioned during plea
negotiations, included in his written motion for downward durational departure, and
restated on the record at his sentencing hearing. He and his counsel cannot be faulted for
failure to call the district judge's attention to these issues. Lack of preservation through
objection in the district court is no bar to appellate consideration.

The second question, however, poses a more significant obstacle to any decision
we might make on the merits. Seward and his counsel stopped short of moving under
Rule 165 to prompt the district judge to place specific findings of fact and conclusions of
law on the constitutional challenges in the record. In Ortega-Cadelan, we recognized that
the analysis of whether a sentence qualifies as cruel or unusual "includes both factual and
legal questions" and listed the three relevant factors from our decision in Freeman, 223
Kan. at 367:
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"'(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.'" 287 Kan. at 160-61.

We then observed that the first of the three factors was "inherently factual,
requiring examination of the facts of the crime and the particular characteristics of the
defendant." Ortega-Cadelan, 287 Kan. at 161.

In Ortega-Cadelan, because the issue had never been raised before the district
court, neither party had presented relevant evidence or arguments on this factor.
Although we acknowledged that the two other Freeman factors depended on legal
determinations, we stated:
10

"[O]ne consideration is not necessarily controlling over the other
considerations; in fact, in Freeman the three considerations were referred to
as 'the three pronged test.' [Citation omitted.] Ultimately, one
consideration may weigh so heavily that it directs the final conclusion.
Before that conclusion is reached, however, consideration should be given
to each prong of the test. Particularly where arguments focus upon
proportionality, . . . the factual aspects of the test are a necessary part of the
overall analysis." Ortega-Cadelan, 287 Kan. at 161.

In Thomas, as in Ortega-Cadelan, we ruled that the defendant had not adequately
addressed his constitutional challenge to Jessica's Law before the district court. In
addition, in response to the defendant's argument that the appellate record was
nevertheless sufficient for this court to rule on the merits, we said: "This argument
ignores the role of this court: Appellate courts do not make factual findings but review
those made by district courts. [Citation omitted.] Here, no factual findings were made
upon which this court can base an analysis of whether the sentence is cruel or unusual."
Thomas, 288 Kan. at 161.

The same is true here. There are no district court findings and conclusions on the
Freeman factors. Although rejection of Seward's constitutional challenges to Jessica's
Law may be implied by the district judge's silence, such silence cannot supply a sound
11
foundation for our appellate review. See Thomas, 288 Kan. at 161; see also State v.
Easterling, 289 Kan. ___, ___, 213 P.3d 418 (2009) (although district court's detailed
recitation in ruling on departure motion included certain factual findings, findings cut
against rather than supported defendant's position on first factor from Freeman; no
argument made on third Freeman factor; issue not before court "in a posture to be
effectively decided").

In this case, the district judge and Seward and his counsel share responsibility for the
absence of adequate findings and conclusions in the record. Our Rule 165 places the primary
duty for arriving at such findings and conclusions on the district judge. It states simply that
"[i]n all contested matters submitted to a judge without a jury . . . , the judge shall state the
controlling facts required by K.S.A. 60-252, and the legal principles controlling the
decision." Rule 165. Numerous past decisions of this court and the Court of Appeals have
characterized this duty as mandatory. See, e.g., Hanks v. Riffe Constr. Co., 232 Kan. 800,
802, 658 P.2d 1030 (1983); State v. Carver, 32 Kan. App. 2d 1070, 1078, 95 P.3d 104
(2004); University of Kansas Mem. Corp. v. Kansas Power & Light Co., 31 Kan. App. 2d
177, 181, 61 P.3d 741 (2003); Jack v. City of Wichita, 23 Kan. App. 2d 606, 610, 933 P.2d
787 (1997); In re Marriage of Case, 18 Kan. App. 2d 457, 464, 856 P.2d 169 (1993);
Dillon=s Food Stores, Inc., v. Brosseau, 17 Kan. App. 2d 657, 659, 842 P.2d 319 (1992); Elite
Professionals, Inc. v. Carrier Corp., 16 Kan. App. 2d 625, 629, 827 P.2d 1195 (1992);
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Pottratz v. Firkins, 4 Kan. App. 2d 469, 470, 609 P.2d 185 (1980). Yet we have also held
that a litigant who fails to object to inadequate Rule 165 findings and conclusions in the
district court is foreclosed from making an appellate argument that would depend upon what
is missing. See Blair Constr., Inc. v. McBeth, 273 Kan. 679, 688, 44 P.3d 1244 (2002);
Tucker v. Hugoton Energy Corp., 253 Kan. 373, 378, 855 P.2d 929 (1993).

In view of the tension produced by these authorities, the newness of the
constitutional issues raised by Jessica's Law, and our recognition that the efforts made by
Seward and his counsel to keep the issues alive beyond sentencing substantially
outstripped those of defendants and counsel in Ortega-Cadelan, Thomas, Spotts, and
Easterling, we are willing to remand this case to the district court for entry of sufficient
factual findings and conclusions of law. On remand, the district judge shall also be
empowered to decide, in her discretion, whether she requires any further hearing,
evidentiary or otherwise, to enable her to discharge her Rule 165 duty.

We emphasize that we believe this case to be exceptional. In the future, a
defendant who wishes to appeal on the basis of a constitutional challenge to a sentencing
statute must ensure the findings and conclusions by the district judge are sufficient to
support appellate argument, by filing of a motion invoking the judge's duty under Rule
165, if necessary.
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Downward Durational Departure

Our standard of review on the denial of a sentencing departure is abuse of
discretion. Judicial discretion is abused "'"when no reasonable person would take the
view adopted by the district judge."'" Thomas, 288 Kan. at 164 (quoting Ortega-Cadelan,
287 Kan. at 165).

On appeal, Seward points to several facts that he contends constitute substantial
and compelling reasons for departure from the Jessica's Law hard 25 sentences: his lack
of a prior felony, his own sexual victimization between the ages of 7 and 10, his mother's
and his own bipolar disorder, his housing in a "boy's home" during his formative years,
other family dysfunction, and his low intelligence and status as a high school dropout.
Seward also argues that he has expressed a strong desire for treatment, has shown
extreme remorse, and has saved his victim from the trauma of testifying by pleading
guilty. By his calculation, even with a departure sentence, he would still serve 176
months and be subject to lifetime postrelease supervision.

K.S.A. 21-4643(d) provides:

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"[T]he sentencing judge shall impose the mandatory minimum term of
imprisonment provided by subsection (a), unless the judge finds
substantial and compelling reasons, following a review of mitigating
circumstances, to impose a departure. If the sentencing judge departs
from such mandatory minimum term of imprisonment, the judge shall
state on the record at the time of sentencing the substantial and
compelling reasons for the departure. . . . [M]itigating circumstances
shall include, but are not limited to, the following:

"(1) The defendant has no significant history of prior criminal
activity.

"(2) The crime was committed while the defendant was under the
influence of extreme mental or emotional disturbances.

"(3) The victim was an accomplice in the crime committed by
another person, and the defendant's participation was relatively minor.

"(4) The defendant acted under extreme distress or under the
substantial domination of another person.

"(5) The capacity of the defendant to appreciate the criminality of
the defendant's conduct or to conform the defendant's conduct to the
requirements of law was substantially impaired.

"(6) The age of the defendant at the time of the crime."
15

This court has defined "substantial" as "something that is real, not imagined;
something with substance and not ephemeral," while the term "'compelling' implies that
the court is forced, by the facts of a case, to leave the status quo or go beyond what is
ordinary." State v. McKay, 271 Kan. 725, 728, 26 P.3d 58 (2001).

In ruling on Seward's departure motion, the district judge orally reviewed the
mitigating and aggravating factors advanced by Seward and the State, engaging in an
appropriate weighing of the competing considerations. The defense has demonstrated no
abuse of discretion in the district judge's denial of its departure motion.

Affirmed in part and reversed and remanded in part for further proceedings
consistent with this opinion.

LUCKERT, J., concurring in part and dissenting in part: I concur in the majority's
holding that the denial of Roy Seward's departure motion was not an abuse of the district
court's discretion. However, I respectfully dissent from the majority's decision to remand
this case for additional findings of fact and conclusions of law regarding Seward's
argument that sentencing him to life is a cruel and unusual punishment.

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As the majority notes, this case follows four decisions in which this court has
refused to consider similar arguments: State v. Easterling, 289 Kan. ___, 213 P.3d 418
(2009); State v. Spotts, 288 Kan. 650, 206 P.3d 510 (2009); State v. Thomas, 288 Kan.
157, 199 P.3d 1265 (2009); and State v. Ortega-Cadelan, 287 Kan. 157, 194 P.3d 1195
(2008). In each of those cases, the defendant was given a life sentence pursuant to
Jessica's Law–K.S.A. 21-4643; the defendant argued on appeal that the sentence was
cruel and unusual without having developed that argument before the district court; and
this court affirmed the defendant's life sentence without further proceedings.

Here, the majority departs from these past decisions by ordering a remand for
additional fact-finding by the district court. The majority justifies the remand because of
(1) the tension in authorities regarding whether a district court or a party has the
obligation to assure there are adequate findings as required by Supreme Court Rule 165
(2008 Kan. Ct. R. Annot. 235); (2) the newness of constitutional issues raised by Jessica's
Law; and (3) the majority's "recognition that the efforts made by Seward and his counsel
to keep the issues alive beyond sentencing substantially outstripped those of defendants
and counsel" in the four previous cases. The first two justifications do not distinguish this
case–the same tension applied in the four previous cases, and the Jessica's Law issues
were even newer when the previous cases were considered. Regarding the third
justification, the majority does not explain how Seward's efforts "substantially
17
outstripped" the others' efforts or what makes this case "exceptional" as the majority
concluded, and I fail to see a distinction or basis for considering this case exceptional.

The lack of distinction is best illustrated by comparing this case to Thomas.
Thomas had filed a motion to depart and in that written motion had argued a life sentence
would be cruel and unusual. Other than this passing reference–which is virtually identical
to that in Seward's written departure motion–Thomas did not support his argument with
evidence or argue any specifics. We stated:

"Thomas did not address these factors [from State v. Freeman, 223 Kan.
362, 367, 574 P.2d 950 (1978)] before the district court, did not present
evidence, and did not ask the court to make findings of fact or conclusions
of law on the issue. See Dragon v. Vanguard Industries, 282 Kan. 349,
356, 144 P.3d 1279 (2006) (litigant must object to inadequate findings of
fact and conclusions of law before the trial court to preserve the issue for
appeal); Supreme Court Rule 165 (2008 Kan. Ct. R. Annot. 235).
Moreover, although Thomas mentioned that a life sentence would be a cruel
or unusual punishment in his motion, on appeal he advances a different
theory regarding how the sentence violates § 9 of the Kansas Constitution
Bill of Rights. In his motion, Thomas based the argument on his age and
the likelihood he would not live long enough to be paroled. On appeal he
argues the sentence is disproportionate to the wrong and to other sentences
provided for under the KSGA." Thomas, 288 Kan. at 159-60.

18
Similarly, Seward did not argue the Freeman factors, did not submit evidence for
the purpose of determining the Freeman factors, and did not ask the district court to make
findings of fact or conclusions of law regarding the Freeman factors. Seward, like
Thomas and the other defendants, gave the district court no insight into the specifics of
his argument–his counsel simply announced that the plea agreement allowed Seward to
raise the argument on appeal and that he intended to do so.

The majority seems to feel that Seward made more of an effort to submit a factual
basis than had the other defendants. However, all Seward does is point to an evaluation
that was considered in support of Seward's departure motion. Similarly, each of the other
defendants in the four prior cases had been evaluated and sought a departure from the life
sentence using the evaluation as support for the argument. Although those evaluations
were not always in the record on appeal (see e.g., Ortega-Cadelan, 287 Kan. at 161), in
each case an evaluation was available to the district court and in at least two of the cases
the defendants asked us to consider these evaluations as evidence relating to the cruel and
unusual punishment argument. E.g., Easterling, 289 Kan. at ___; Thomas, 288 Kan. at
161. This point does not distinguish Seward's case.

Arguably a distinction arises because Seward's counsel, during the sentencing
hearing, uttered, "[T]he Defense would object to the oppressive nature of the life
19
imprisonment that goes along with this statute, the constitutionality, and we do intend to
appeal that." In my view, this is a distinction without a difference because Thomas and
some of the other defendants put similar words on paper in their motions for departure.
The difference between stating an argument in a departure motion that is considered at the
sentencing hearing and making a statement during the hearing might be significant if we
were considering an issue where case law demanded a contemporaneous objection. Or
this distinction might make a difference if we were scouring the record for any mention of
a legal issue to determine if it had been raised below and the oral statement raised
different concerns than did the written motion. We are doing neither of those tasks.
Rather, this appeal concerns whether Seward met his evidentiary burden, and the record
reflects that Seward made no more effort to do so than did any of the four previous
defendants who raised their appeal to this court.

In fact, Seward's counsel handed a "free pass" to the district court by announcing
that an argument regarding the "oppressive nature of the life imprisonment" would be
argued on appeal. In essence, the defense told the district court not to consider the cruel
and unusual punishment argument. In light of that announcement, it is no surprise the
district court did not make findings regarding the Freeman factors.

Moreover, the State should not be expected to have created whatever factual
20
record it felt necessary to answer an argument that the sentence was cruel and unusual
after defense counsel's statement that it was not presenting the issue to the district court,
especially when it is hard to discern the nature of the defense's argument from the oblique
reference to the "oppressive nature" of the sentence. As the State argues and as we have
concluded in the previous cases, the purpose of requiring issues to be presented to the
district court is to give all parties–not just the movant–an opportunity to create a record.
Exceptions to this rule have been recognized when the issue raises purely a legal question
and, thus, no party is disadvantaged by the lack of a factual record. Where, as here, there
is a factual component to an argument, an appellate court cannot determine what
evidence, if any, the opposing party might have admitted if the defendant had adequately
raised the issue. See Ortega-Cadelan, 287 Kan. at 161. Suggesting, as has the majority
in this case, that this defect can be cured by giving the district court the discretion to
reopen the record only excuses the defendant from having failed to meet his burden to
establish the cruel and unusual nature of his sentence.

In my view, a remand for additional findings of fact and conclusions of law is only
appropriate if the parties have created a record relating to an issue and the only thing
lacking is a record of the district court's findings regarding that admitted evidence and the
conclusions of law that arise from those findings. See White v. State, 201 Kan. 801, 804-
05, 443 P.2d 182 (1968); cf. In re Marriage of Bradley, 258 Kan. 39, 50, 899 P.2d 471
21
(1995) (in civil case, distinguishing sufficiency of evidence argument, which can be
raised regardless of failure to object to inadequacy of district court's findings). But, there
is no basis to remand when a party invited the district court to ignore the issue, did not
present arguments to the district court, did not present evidence supporting the argument,
and potentially disadvantaged the opposing party who might have developed a different
record had the argument been presented.

Consequently, remand is inappropriate in this case. I would affirm Seward's
sentence.