State v. Allen

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NOT DESIGNATED FOR PUBLICATION

No. 117,316

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DEJUAN Y. ALLEN,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; DAVID J. KAUFMAN, judge. Opinion filed March 23, 2018.
Affirmed.

Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before ARNOLD-BURGER, C.J., MALONE and MCANANY, JJ.

PER CURIAM: Dejuan Y. Allen appeals his sentence following his conviction of
one count of aggravated sexual battery. Allen's only claim on appeal is that lifetime
postrelease supervision for aggravated sexual battery is categorically cruel and unusual
punishment under the Eighth Amendment to the United States Constitution. Consistent
with prior Kansas appellate court decisions on this exact issue, we reject Allen's claim
and affirm the district court's judgment.

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Because Allen makes only a categorical challenge to his sentence of lifetime
postrelease supervision, and because he does not challenge the constitutionality of the
sentence as applied to the facts of his case, we need not address the underlying facts and
circumstances surrounding Allen's conviction. Simply stated, the State initially charged
Allen with rape, a severity level 1 person felony, but he pled guilty to aggravated sexual
battery, a severity level 5 person felony, in violation of K.S.A. 2015 Supp. 21-5505(b)(2).
Although the presentence investigation report disclosed that Allen has numerous prior
convictions for crimes, including aggravated battery and criminal threat, this case was his
first conviction of a sexually violent crime. The parties agreed to a downward durational
departure, and the district court sentenced Allen to 54 months' imprisonment with
lifetime postrelease supervision. Allen timely filed a notice of appeal.

The issue statement in Allen's appellate brief states that "Allen's lifetime
postrelease sentence is categorically cruel and/or unusual and violates the Eighth
Amendment to the U.S. Constitution and Section 9 of the Kansas Constitution Bill of
Rights." Specifically, Allen contends that lifetime postrelease supervision is categorically
cruel and unusual punishment under the Eighth Amendment because it is harsh and
disproportionate to the crime of aggravated sexual battery. Allen acknowledges that
precedent is not on his side, but he argues there is a national consensus against this
sentencing practice. Allen also argues that other states reserve this punishment for more
serious sexual offenses, whereas aggravated sexual battery is a less culpable and less
severe offense that does not warrant this level of supervision. Finally, Allen asserts that
lifetime postrelease supervision fails to serve the penological goals of retribution,
deterrence, incapacitation, and rehabilitation.

The State contends that lifetime postrelease supervision for aggravated sexual
battery is not categorically disproportionate in violation of the Eighth Amendment. The
State points out that other panels of this court have rejected the exact argument Allen is
making in this appeal. The State argues that just because Kansas is in the minority of
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states that imposes lifetime postrelease supervision without the possibility of release does
not mean there is a national consensus against it. Finally, the State asserts that the
sentence serves the goals of retribution, deterrence, incapacitation, and rehabilitation.

Before continuing, we note that although the issue statement in Allen's brief
asserts that his sentence of lifetime postrelease supervision violates "Section 9 of the
Kansas Constitution Bill of Rights," Allen does not offer any authority to support this
claim. Failure to support a point with pertinent authority or show why it is sound despite
a lack of supporting authority or in the face of contrary authority is akin to failing to brief
the issue. State v. Murray, 302 Kan. 478, 486, 353 P.3d 1158 (2015). An issue not briefed
by the appellant is deemed waived or abandoned. State v. Williams, 303 Kan. 750, 758,
368 P.3d 1065 (2016). A claim under the Kansas Constitution requires a different
standard of review and analysis than a claim under the Eighth Amendment. Because
Allen fails to present any authority or arguments to support his claim under the Kansas
Constitution, this opinion will only address Allen's claim under the Eighth Amendment.

Allen was convicted of aggravated sexual battery in violation of K.S.A. 2015
Supp. 21-5505(b)(2), which prohibits the touching of a victim who is 16 or more years of
age, without consent, with the intent to arouse or satisfy the sexual desires of the offender
or another, and when the victim is unconscious or physically powerless. The Kansas
Legislature has defined aggravated sexual battery as a sexually violent crime subject to
mandatory lifetime postrelease supervision. K.S.A 2015 Supp. 22-3717(d)(5)(I).

Allen claims lifetime postrelease supervision is categorically cruel and unusual
punishment under the Eighth Amendment because it is harsh and disproportionate to the
crime of aggravated sexual battery. A categorical proportionality challenge under the
Eighth Amendment implicates only questions of law. This court has unlimited review
over legal questions. State v. Mossman, 294 Kan. 901, 925, 281 P.3d 153 (2012).

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In Graham v. Florida, 560 U.S. 48, 61, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010),
the Court applied a two-step analysis in considering a categorical challenge under the
Eighth Amendment:

"The 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."

Allen contends there is not a national consensus for lifetime postrelease
supervision for aggravated sexual battery. He argues that out of all the states that impose
lifetime postrelease supervision, Kansas is only one of two states that does not allow for
early discharge or release of supervision. He also argues that other states reserve this
punishment for more serious sexual offenses, whereas aggravated sexual battery is a less
culpable and less severe offense that does not warrant this level of supervision. But the
inquiry is not whether there is a national consensus for the sentencing practice, it is
whether there is a national consensus against the sentencing practice.

In Mossman, our Supreme Court stated that "'objective indicia' suggest that society
is comfortable with lifetime sentences of supervised release for sex offenders, as such
sentences are common." 294 Kan. at 929. Our Supreme Court has repeatedly held that
lifetime postrelease supervision is constitutional for adult sex offenders and panels of this
court have specifically ruled that lifetime postrelease supervision is not cruel and unusual
punishment for aggravated sexual battery offenses. In State v. Sheltrown, No. 114,180,
2017 WL 1104503, at *3-4 (Kan. App. 2017) (unpublished opinion), rev. denied 306
Kan. 1329 (2017), this court stated, "the fact that Kansas is one of few states that impose
lifetime postrelease supervision without the possibility of release for the crime of
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aggravated sexual battery does not mean that there is a national consensus condemning
such punishment." We agree with the analysis expressed in Sheltrown and conclude that
there is no national consensus against this sentencing practice.

Next, this court must determine in the exercise of our own independent judgment
whether the punishment in question violates the Constitution. "The judicial exercise of
independent judgment requires consideration of the culpability of the offenders at issue in
light of their crimes and characteristics, along with the severity of the punishment in
question. In this inquiry the Court also considers whether the challenged sentencing
practice serves legitimate penological goals. [Citations omitted.]" Graham, 560 U.S. at
67. The legitimate penological goals are retribution, deterrence, incapacitation, and
rehabilitation. 560 U.S. at 71.

Allen argues that aggravated sexual battery is a less culpable offense than other
sexually violent crimes because it does not involve children or penetration. But as the
State points out, aggravated sexual battery and indecent liberties with a child are both
severity level 5 offenses. Although aggravated sexual battery does not include a
penetration element, the crime involves an unlawful touching with the intent to arouse or
satisfy the sexual desires of the offender or another. See K.S.A. 2015 Supp. 21-5505(b).
As this court stated in Sheltrown, "aggravated sexual battery is a sexually violent crime,
and an offender is not any less culpable because he did not also commit other sexually
violent crimes." 2017 WL 1104503, at *5. We reject Allen's claim that aggravated sexual
battery is a less culpable offense than other sexually violent crimes.

This court also must consider the penological goals of lifetime postrelease
supervision. Allen argues that lifetime postrelease supervision fails to serve any of the
legitimate penological goals of retribution, deterrence, incapacitation, and rehabilitation.
But the Kansas Supreme Court has found that "'[s]upervised release can further the end of
rehabilitating sex offenders. . . . Relatedly, supervised release helps incapacitate sex
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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.' [Citation
omitted.]" State v. Cameron, 294 Kan. 884, 898, 281 P.3d 143 (2012). Although
Cameron involved a conviction of indecent solicitation of a child, the Sheltrown court
applied the same reasoning to aggravated sexual battery: "Supervised release helps
rehabilitate sex offenders. Further, supervised release can incapacitate sex offenders
because they are kept under the 'watchful eye' of probation officers." 2017 WL 1104503,
at *5.

In State v. Lazo-Gaitam, No. 113,818, 2013 WL 678205, at *7 (Kan. App. 2013)
(unpublished opinion), a case where the defendant was convicted of aggravated sexual
battery, this court stated that retribution is another recognized justification for lifetime
postrelease supervision because of the high rate of recidivism and danger posed by this
category of offenders. Also, in State v. Collins, No. 100,996, 2012 WL 6734500, at *8
(Kan. App. 2012) (unpublished opinion), another case where the defendant was convicted
of aggravated sexual battery, this court concluded that lifetime postrelease supervision
serves the penological goals of rehabilitation, incapacitation, retribution, and deterrence.

To sum up, lifetime postrelease supervision is not cruel and unusual punishment
under the Eighth Amendment because there is no national consensus against this
sentencing practice for sexually violent crimes, including aggravated sexual battery. In
this court's independent judgment, aggravated sexual battery is not a less culpable offense
than other sexually violent crimes just because it does not involve a child or penetration.
Moreover, lifetime postrelease supervision furthers legitimate penological goals of
retribution, deterrence, incapacitation, and rehabilitation. Allen's sentence of lifetime
postrelease supervision is not disproportionate to his crime of aggravated sexual battery
so as to constitute cruel and unusual punishment in violation of the Eighth Amendment.

Affirmed.