State v. Adams

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NOT DESIGNATED FOR PUBLICATION

No. 114,474

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DONALD ADAMS,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed June 17, 2016. Affirmed.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.

Before MALONE, C.J., LEBEN, J., and JOHNSON, S.J.

Per Curiam: Donald Adams appeals the district court's order granting the State's
motion to correct illegal sentence. The district court originally sentenced Adams to
imprisonment and 24 months' postrelease supervision, but upon the State's motion, the
district court resentenced Adams to lifetime postrelease supervision. Adams claims that
the district court lacked jurisdiction to modify his sentence. He also claims that lifetime
postrelease supervision constitutes cruel and unusual punishment. For the reasons set
forth herein, we affirm the district court's judgment.

The facts are straightforward and undisputed. On January 30, 2012, pursuant to a
plea agreement, Adams pled no contest to three counts of aggravated indecent solicitation
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of a child. On April 6, 2012, the district court sentenced Adams to a controlling term of
68 months' imprisonment and 24 months' postrelease supervision. Adams appealed his
sentence, but our Supreme Court dismissed the appeal on February 7, 2014, because it
lacked jurisdiction to consider Adams' challenge to his presumptive sentence. State v.
Adams, No. 108,066, 2014 WL 503461 (Kan. 2014) (unpublished opinion).

On May 19, 2015, the State filed a motion to correct illegal sentence, arguing that
the controlling statutes at the time of Adams' offenses required lifetime postrelease
supervision, not the 24 months the district court had imposed. The district court held a
hearing on the motion on July 1, 2015. At the hearing, Adams claimed that modifying his
postrelease supervision to lifetime supervision would be cruel and unusual punishment in
violation of the Kansas Constitution Bill of Rights and the United States Constitution.
The district court granted the State's motion and resentenced Adams, imposing lifetime
postrelease supervision. Adams timely appealed.

In his first issue on appeal, Adams contends that the district court lacked
jurisdiction to resentence him and impose lifetime postrelease supervision. The State
argues that the district court had jurisdiction to correct Adams' original sentence because
it was illegal. Whether a court has subject matter jurisdiction presents a legal question
over which an appellate court exercises unlimited review. State v. Toahty-Harvey, 297
Kan. 101, 104, 298 P.3d 338 (2013). To the extent that jurisdiction turns on the
interpretation of statutes, an appellate court also engages in unlimited review. State v.
Ballard, 289 Kan. 1000, 1010, 218 P.3d 432 (2009).

Adams claims that once his sentence was pronounced and final, the district court
lost jurisdiction to modify the sentence. But the general rule prohibiting a district court
from modifying a sentence after it is pronounced applies only to a legal sentence. See
State v. McKnight, 292 Kan. 776, 779, 257 P.3d 339 (2011) ("If the trial court had
imposed a lawful lesser sentence, the court was without jurisdiction to later modify that
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sentence."). A district court has jurisdiction to correct an illegal sentence at any time. See
K.S.A. 22-3504(1). An "illegal sentence," as contemplated by K.S.A. 22-3504(1) is a
sentence imposed by a court without jurisdiction; a sentence that does not conform to the
statutory provision, either in the character or the term of authorized punishment; or a
sentence that is ambiguous with respect to the time and manner in which it is to be
served. State v. Taylor, 299 Kan. 5, 8, 319 P.3d 1256 (2014).

Here, Adams committed his crimes between June 1, 2008, and December 3, 2009;
therefore, under K.S.A. 2009 Supp. 22-3717(d)(1)(G) and (d)(2)(G), because he was
convicted of aggravated indecent solicitation of a child, he was subject to a "mandatory
period of postrelease supervision for the duration of [his] natural life." The district court's
original sentence concerning postrelease supervision did not conform to the statutory
provision in the term of the authorized punishment; thus, it was an illegal sentence.

Our Supreme Court has previously held that a district court has jurisdiction to
correct a sentence rendered illegal by the imposition of an incorrect term of postrelease
supervision and impose the correct, legal one. See Ballard, 289 Kan. at 1010-12. As
Adams acknowledges in his appellate brief, this court has applied Ballard to conclude
that any defendant that should be sentenced under K.S.A. 22-3717(d)(1)(G) "is to be
sentenced under that subsection. Any other sentence imposed is illegal." See State v.
Baber, 44 Kan. App. 2d 748, 754, 240 P.3d 980 (2010), rev. denied 296 Kan. 1131
(2013). Because Adams' original sentence did not include the statutorily mandated term
of lifetime postrelease supervision, the sentence was illegal and the district court had
jurisdiction to correct the illegal sentence by imposing lifetime postrelease supervision.

Next, Adams argues that the imposition of lifetime postrelease supervision
constituted cruel and unusual punishment in violation of his constitutional rights. The
State argues that the imposition of lifetime postrelease supervision did not amount to an
unconstitutional cruel and unusual punishment. The constitutionality of a sentencing
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statute is a question of law subject to unlimited appellate review. State v. Hilt, 299 Kan.
176, 202, 322 P.3d 367 (2014).

Although Adams generally claims that the imposition of lifetime postrelease
supervision violated his rights under the state and federal Constitutions, he has failed to
brief an Eighth Amendment claim of unconstitutionality. An issue not briefed by the
appellant is deemed waived and abandoned. State v. Bolze-Sann, 302 Kan. 198, 219, 352
P.3d 511 (2015) (stating that failing to brief an issue results in a party waiving and
abandoning the argument).

As to Adams' claim under our state constitution, courts consider three factors to
determine whether a sentence is cruel or unusual in violation of § 9 of the Kansas
Constitution Bill of Rights. See State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950
(1978). The Freeman factors are as follows:

"(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." 223 Kan. at 367.

As he acknowledges in his brief, in order to preserve an argument that punishment
is cruel and/or unusual under the Freeman analysis, Adams had to raise the argument in
district court. See State v. Naputi, 293 Kan. 55, 67-68, 260 P.3d 86 (2011) (declining to
reach issue on appeal where it was not adequately argued in the district court). Adams
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briefly argued the Freeman factors to the district court. However, the district court did
not make specific findings addressing the factors. Instead, the district judge stated,
without further explanation: "I also find and know precedent that ordering lifetime post
release for these offenses is not an unconstitutionally cruel and unusual punishment."
Adams did not object to the inadequacy of the district court's findings.

Adams now asks this court to remand and instruct the district court to hold a
hearing and make specific findings on the Freeman factors. He relies on State v. Seward,
289 Kan. 715, 720-21, 217 P.3d 443 (2009), as support for his assertion that this court
may remand to the district court for a hearing on the Freeman factors. In Seward, our
Supreme Court placed shared responsibility on the district judge, the defendant, and
defense counsel for the lack of adequate findings and conclusions regarding the Freeman
factors. 289 Kan. at 720. Recognizing that whether lifetime postrelease supervision
constituted cruel or unusual punishment was a relatively new claim at the time of the
defendant's sentence, the Seward court excused the defendant's failure to object to the
inadequacy of the district court's findings and remanded for further proceedings. 289
Kan. at 721. However, the Seward court further stated:

"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 court are
sufficient to support appellate argument, by filing of a motion invoking the judge's duty
under Rule 165, if necessary." 289 Kan. at 721.

Since Seward, both our Supreme Court and this court have followed Seward's
warning that litigants must ensure that the district court make adequate findings and
conclusions on the Freeman factors or lose the opportunity for appellate review. See, e.g.,
State v. Boleyn, 297 Kan. 610, 630-31, 303 P.3d 680 (2013), (rejecting request for
remand pursuant to Seward); State v. Rogers, 297 Kan. 83, 89-90, 298 P.3d 325 (2013)
(same); State v. Reed, 50 Kan. App. 2d 1133, 1138-39, 336 P.3d 912 (2014) (stating that
defendant's failure to ensure the district court made adequate findings and conclusions on
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Freeman challenge foreclosed this court's review), rev. denied 302 Kan. ___ (September
10, 2015).

Our Supreme Court's recent holding in State v. Reed, 300 Kan. 494, 514, 332 P.3d
172 (2014), is particularly helpful. In that case, the defendant argued that the district
court's imposition of life sentences without the possibility of parole for 40 years was
cruel and/or unusual punishment, in violation of the Kansas Constitution Bill of Rights
and the Eighth Amendment. The defendant raised the constitutional issue at his
sentencing hearing, but the district court did not make specific findings in response to the
argument. On appeal, when the defendant asked our Supreme Court to remand to the
district court to make sufficient findings, our Supreme Court rejected the request. 300
Kan. at 513-14. Pointing out that it had filed its opinion in Seward over a year before the
defendant's sentencing, our Supreme Court held that a remand for factual findings was
not appropriate in the defendant's case. 300 Kan. at 514.

Similarly, a remand for further findings and conclusions is not appropriate here.
The hearing on the State's motion to correct Adams' illegal sentence occurred on July 1,
2015, over 5 years after Seward was filed. Adams should have known that it was his
responsibility to make sure there were factual findings and legal conclusions on the
record adequate to preserve the issue for appeal. Because Adams failed to ensure that the
district court made adequate findings and conclusions on the Freeman factors, he has
failed to preserve this issue for appeal.

Affirmed.