State v. Fishback

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NOT DESIGNATED FOR PUBLICATION

No. 114,797

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

WILLIAM N. FISHBACK,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed December 2,
2016. Affirmed.

Joanna Labastida, of Kansas Appellate Defender Office, for appellant.

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

Before MALONE, C.J., STANDRIDGE, J., and HEBERT, S.J.

Per Curiam: William N. Fishback appeals the district court's decision to modify
his postrelease supervision term from 24 months to lifetime following his conviction of
indecent liberties with a child. Fishback first claims lifetime postrelease supervision is an
illegal sentence in his case due to a conflict between K.S.A. 2015 Supp. 22-
3717(d)(1)(G) and K.S.A. 2015 Supp. 22-3717(d)(1)(D). Second, Fishback claims that
lifetime postrelease supervision constitutes cruel and/or unusual punishment. For the
reasons stated herein, we reject both claims and affirm the district court's judgment.

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On September 3, 2009, the State charged Fishback with one count of aggravated
indecent liberties with a child. The complaint alleged that the crime was committed on
June 14, 2009. On October 28, 2009, Fishback pled no contest to an amended charge of
indecent liberties with a child, a severity level 5 person felony. On December 11, 2009,
the district court sentenced Fishback to 32 months' imprisonment but granted probation
with community corrections for 36 months. On May 23, 2011, the district court revoked
Fishback's probation and ordered him to serve his underlying prison sentence.

Four years later, on May 28, 2015, the State filed a motion to correct illegal
sentence. In the motion, the State contended that K.S.A. 22-3171(d)(1)(G) required a
sentence of lifetime postrelease supervision for Fishback's conviction of indecent liberties
with a child. At a hearing on July 22, 2015, Fishback argued that imposition of lifetime
postrelease supervision would be cruel and unusual punishment. After hearing arguments
of counsel, the district court granted the State's motion and resentenced Fishback to
lifetime postrelease supervision. Fishback timely appealed.

On appeal, Fishback first claims that his lifetime postrelease supervision sentence
is illegal. Specifically, he argues that K.S.A. 22-3717 was amended in 2013 and the
amended statute applies to his pending case. As a result of the amendment, Fishback
contends that K.S.A. 2015 Supp. 22-3717(d)(1)(D) and K.S.A. 2015 Supp. 22-
3717(d)(1)(G) directly conflict. He argues that under the rule of lenity, his postrelease
supervision term should be 24 months under K.S.A. 2015 Supp. 22-3717(d)(1)(D), rather
than lifetime under K.S.A. 22-3717(d)(1)(G).

Interpretation of a sentencing statute is a question of law over which appellate
courts have unlimited review. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098
(2015). Also, whether a sentence is illegal within the meaning of K.S.A. 22-3504 is a
question of law over which the appellate court has unlimited review. State v. Lee, 304
Kan. 416, 417, 372 P.3d 415 (2016).
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Fishback's statutory argument recently was rejected by this court in State v.
Herrmann, No. 114,887, 53 Kan. App. 2d ___, ___ P.3d ___ (filed November 18, 2016).
In Herrmann, this court determined that K.S.A. 2015 Supp. 22-3717(d)(1)(D) only
applies to persons convicted of a sexually violent crime after July 1, 1993, but before July
1, 2006. Herrmann, Syl. ¶ 5. This court further held that the 2013 amendments to K.S.A.
22-3717(d)(1)(D) do not alter the requirement in K.S.A. 22-3717(d)(1)(G) that a person
convicted of a sexually violent crime after July 1, 2006, receive lifetime postrelease
supervision. Herrmann, Syl. ¶ 4. We adopt this court's reasoning in Herrmann and apply
that reasoning to the facts herein. Thus, we conclude that on the date Fishback's crime
was committed, K.S.A. 22-3717(d)(1)(G) required a sentence of lifetime postrelease
supervision for a conviction of indecent liberties with a child and the statutory
amendments have not altered this result.

Next, Fishback contends that lifetime postrelease supervision is cruel and/or
unusual punishment in violation of § 9 of the Kansas Constitution Bill of Rights and the
Eighth Amendment to the United States Constitution. When reviewing whether a
sentence is cruel or unusual under the Kansas and United States Constitutions, appellate
courts review the district court's factual findings for substantial competent evidence and
its legal conclusions de novo. State v. Funk, 301 Kan. 925, 933, 349 P.3d 1230 (2015).

"A statute is presumed constitutional and all doubts must be resolved in favor of
its validity." Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 629, 176 P.3d 938
(2008). "[I]f there is any reasonable way to construe a statute as constitutional, courts
have the duty to do so by resolving all doubts in favor of constitutionality." State v.
Mossman, 294 Kan. 901, 906-07, 281 P.3d 153 (2012) (citing State v. Laturner, 289 Kan.
727, 735, 218 P.3d 23 [2009]). We will first address Fishback's challenge under the
Kansas Constitution Bill of Rights and then his challenge under the Eighth Amendment.


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SECTION 9 OF THE KANSAS CONSTITUTION BILL OF RIGHTS

Section 9 of the Kansas Constitution Bill of Rights prohibits the infliction of cruel
or unusual punishment. In State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978),
our Supreme Court held that punishment may be constitutionally impermissible, although
not cruel or unusual in its method, "if it is so disproportionate to the crime for which it is
inflicted that it shocks the conscience and offends fundamental notions of human
dignity." The Freeman court set forth three criteria for evaluating whether the length of a
sentence offends the constitutional prohibition against cruel or unusual punishment:

"(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.

Analysis under the first Freeman factor requires the court to consider the nature of
the offense and the character of the offender, with particular regard to the degree of
danger present to society. State v. Ross, 295 Kan. 424, 426, 284 P.3d 309 (2012). The
factors under this prong are "inherently factual, requiring examination of the facts of the
crime and the particular characteristics of the defendant." State v. Ortega-Cadelan, 287
Kan. 157, 161, 194 P.3d 1195 (2008). Here, the district court made the following factual
findings:

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"In this case the defendant was originally arrested for a more serious charge and
in fact was charged, it was, like, an amended charge. The State amended to indecent
liberties from the aggravated indecent liberties at the time of the plea, and also
acquiesced in the departure so Mr. Fishback got a significant benefit at the time of the
plea and sentencing in this case, but with respect to the particular individual, this was a
girl that was basically 14 and Mr. Fishback was 26 and that his conduct—[i]f he didn't
know any better he should have known better and it appears that he put his own desires
and needs above the morals of society and what was best for his victim so I do not find
that it's inappropriate for lifetime post release and therefore, grant the motion. I find it's
an illegal sentence and impose lifetime post release."

On appeal, Fishback does not challenge the district court's factual findings. Rather,
he argues that his crime should not be considered violent because the State did not
present evidence that Fishback used a weapon, kidnapped his victim, or put the victim in
a position where she could have died. We note that our Supreme Court has held that the
legislature is justified in categorizing indecent solicitation as a "sexually violent crime"
even where there is no evidence of physical force because of the State's vital interest in
protecting children from being victimized by sexual crime. See Mossman, 294 Kan. at
909. If the crime of indecent solicitation does not require evidence of physical force to be
categorized as a sexually violent crime, it follows that indecent liberties with a child does
not require evidence of physical force to be categorized as a sexually violent crime.

Fishback also notes that this is the first time he has been convicted of a sexual
offense. But in the absence of any significant findings about Fishback's character, his lack
of sex offenses in his criminal history alone does not indicate that the punishment is
unconstitutional. See State v. Miller, 297 Kan. 516, 521, 304 P.3d 1221 (2013) ("The first
Freeman factor relates more to the danger posed to society than to sympathetic aspects of
defendant's circumstances."). The district court properly considered the facts that
Fishback was 26 years old, the victim was 14 years old, and Fishback put his own desires
and needs above the morals of society and what was best for his victim. Despite the
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brevity of the district court's findings, we conclude that the first Freeman factor weighs in
favor of imposing lifetime postrelease supervision in Fishback's case.

The second Freeman factor requires comparing a challenged punishment with
punishments imposed in the same jurisdiction for more serious offenses. 223 Kan. at 367.
Here, the district court stated:

"With respect to the imposition of a lifetime post release in a case like this as compared
to some other charges that might be considered more serious the sex offenses are
distinguishable because of the likelihood that people would reoffend, are more likely to
reoffend as opposed to such violent crimes that do carry larger underlying sentences and
the appellate courts pretty much resolved that, too."

Fishback argues he would have received a less severe postrelease supervision
sentence had he committed second-degree murder. Citing the United States Supreme
Court's decision in Kennedy v. Louisiana, 554 U.S. 407, 412, 128 S. Ct. 2641, 171 L. Ed.
2d 525 (2008), Fishback argues that forcible child rape is a less serious crime than
murder; and unlike the case in rape, there is no possibility of victim recovery from
murder. Fishback cites additional offenses that he contends are "more serious" than
indecent liberties with a child but carry 36-month postrelease supervision terms:
aggravated kidnapping, K.S.A. 21-3421 (severity level 1 person felony); aggravated
trafficking, K.S.A. 21-3447 (severity level 1 person felony); electronic solicitation of a
child, K.S.A. 2009 Supp. 21-3523(a)(2) (severity level 1 person felony); furtherance of
terrorism or illegal use of weapons of mass destruction, K.S.A. 21-3451 (severity level 1
person felony); manufacture of controlled substances, K.S.A. 2009 Supp. 21-36a03 (drug
severity level 1 felony); human trafficking, K.S.A. 21-3446 (severity level 2 person
felony); and voluntary manslaughter, K.S.A. 21-3403 (severity level 3 person felony).

Our Supreme Court previously has rejected arguments similar to Fishback's. See
Mossman, 294 Kan. at 912-13; State v. Cameron, 294 Kan. 884, 892-93, 281 P.3d 143
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(2012). As to the second Freeman factor, our Supreme Court has rejected arguments that
focus only on the length of postrelease supervision without taking into consideration the
total length of the sentence, including incarceration. See Mossman, 294 Kan. at 912-13;
Cameron, 294 Kan. at 892-93. We conclude the district court did not err in determining
that a term of lifetime postrelease supervision is not grossly disproportionate to the
sentence imposed for other arguably more severe offenses in Kansas.

The third Freeman factor requires a comparison of the sentence imposed with
punishments in other jurisdictions for the same offense. 223 Kan. at 367. On this factor,
the district court simply noted that Kansas appellate courts have consistently ruled in
favor of lifetime postrelease supervision.

On appeal, Fishback notes that only five states impose lifetime postrelease
supervision for the offense of indecent liberties with a child. He also notes that 13 states
impose mandatory lifetime postrelease supervision, but those states do not apply it to sex
offenses. Our Supreme Court previously rejected similar arguments in Mossman:

"[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
alone in imposing mandatory lifetime postrelease supervision for crimes such as
[aggravated indecent liberties with a child], and we are not aware of any court that has
found lifetime postrelease supervision of a violent sex offender to be cruel and unusual
punishment." 294 Kan. at 920.

In sum, each of the Freeman factors weighs in favor of imposing lifetime
postrelease supervision for Fishback's conviction of indecent liberties with a child.
Lifetime postrelease supervision is not so disproportionate to Fishback's crime that it
shocks the conscience or offends fundamental notions of human dignity. See Freeman,
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223 Kan. at 367. Substantial competent evidence supports the district court's conclusion
that lifetime postrelease supervision for Fishback's conviction of indecent liberties with a
child is constitutional under § 9 of the Kansas Constitution Bill of Rights.

EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION

Fishback also argues that the imposition of lifetime postrelease supervision is
unconstitutional as cruel and unusual punishment under the Eighth Amendment, as
applied to the states through the Fourteenth Amendment to the United States
Constitution. The United States Supreme Court has found that "[t]he concept of
proportionality is central to the Eighth Amendment. Embodied in the Constitution's ban
on cruel and unusual punishments is the 'precept of justice that punishment for crime
should be graduated and proportioned to [the] offense.'" Graham v. Florida, 560 U.S. 48,
59, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010).

There are two types of proportionality challenges under the Eighth Amendment:
(1) a case-specific challenge that the sentence is disproportionate "given all the
circumstances in a particular case," Graham, 560 U.S. at 59; and (2) a categorical
challenge "that an entire class of sentences is unconstitutionally disproportionate given
the severity of the sentence, the gravity of the crime, and the type of offender." United
States v. Williams, 636 F.3d 1229, 1233 (9th Cir. 2011).

Case-specific challenge

In analyzing a case-specific Eighth Amendment challenge, the threshold inquiry
requires the court to compare the gravity of the offense with the severity of the sentence
to determine if there is a gross disproportionality. In this analysis, courts may consider
the defendant's mental state and motive in committing the crime, the actual harm caused
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to the victim or to society by the defendant's conduct, the defendant's prior criminal
history, and the defendant's propensity for violence. Ross, 295 Kan. at 428-29.

Fishback's case-specific challenge is factual in nature and therefore may not be
brought for the first time on appeal. See State v. Gomez, 290 Kan. 858, 862, 235 P.3d
1203 (2010). In any case, Fishback relies on his argument regarding the Freeman factors
as his case-specific challenge under the Eighth Amendment. As was discussed above,
there is substantial competent evidence to support the district court's findings that
Fishback's sentence of lifetime postrelease supervision was not grossly disproportionate.
Thus, Fishback's case-specific challenge under the Eighth Amendment fails.

Categorical challenge

Unlike a case-specific challenge, a categorical analysis under the Eighth
Amendment does not require a review of factual findings made by the district court. See
State v. Ruggles, 297 Kan. 675, 679, 304 P.3d 338 (2013). Rather, because only questions
of law are implicated, an appellate court has unlimited review over the legal questions.
Mossman, 294 Kan. at 925.

The United States Supreme Court in Graham outlined a two-prong test for courts
to evaluate a categorical constitutional challenge:

"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. [Citation
omitted.]" 560 U.S. at 61.
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First, Fishback argues that there is a national consensus against lifetime
postrelease supervision for indecent liberties with a child. He simply reiterates that only
five states impose mandatory lifetime postrelease supervision for this offense. In
Mossman, our Supreme Court relied on Williams, which held that lifetime supervised
release was not cruel and unusual punishment for the crime of child pornography. The
Ninth Circuit in Williams held that "'objective indicia' suggest that society is comfortable
with lifetime sentences of supervised release for sex offenders, as such sentences are
common." 636 F.3d at 1233. Moreover, the Mossman court noted that "several other
states have adopted lifetime postrelease supervision for many, if not all, sexually violent
crimes." 294 Kan. at 930; see Cameron, 294 Kan. at 897 (same analysis).

Under the second prong, this court must exercise its independent judgment to
determine whether lifetime postrelease supervision violates the Eighth Amendment.
Graham, 560 U.S. at 61. This step requires consideration of the culpability of offenders
in light of their crimes and characteristics, and the severity of the punishment in question.
Included in this inquiry is an examination of "whether the challenged sentencing practice
serves legitimate penological goals." 560 U.S. at 67-68. Legitimate penological goals
include retribution, deterrence, incapacitation, and rehabilitation. 560 U.S. at 71.

Kansas courts previously have considered whether lifetime postrelease supervision
for sex offenders serves legitimate penological goals. In Mossman, our Supreme Court
again looked to Williams, which held that the goals of 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." 636 F.3d at 1234. The Williams
court also held that "[s]upervised release can further the end of rehabilitating sex
offenders" and that "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.

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Mossman applied Williams' reasoning to lifetime postrelease supervision for the
crime of aggravated indecent liberties with a child. Mossman, 294 Kan. at 930. The same
reasoning applies to indecent liberties with a child. See State v. Reed, 50 Kan. App. 2d
1133, 1145, 336 P.3d 912 (2014) (lifetime postrelease supervision for indecent liberties
with a child "serves the valid penological objectives of deterring such conduct and in
incapacitating and rehabilitating the offender"), rev. denied 302 Kan. 1019 (2015).
Following the guidance of prior appellate decisions, we conclude that Fishback's sentence
is not categorically disproportionate under the Eighth Amendment.

Application of State v. Proctor

Finally, Fishback argues that this court should find lifetime postrelease
supervision inapplicable to him because of similarities between his case and State v.
Proctor, No. 104,697, 2013 WL 6726286 (Kan. App. 2013) (unpublished opinion), rev.
denied 299 Kan. 1273 (2014). In Proctor, a panel of this court held that lifetime
postrelease supervision was unconstitutional as applied to the defendant, a victim of
sexual abuse, under both § 9 of the Kansas Constitution Bill of Rights and the Eighth
Amendment of the United States Constitution. 2013 WL 6726286, at *1.

Fishback argues that, like in Proctor, the potential for life imprisonment comes not
from the current conviction, but for any future conviction he may receive in the future.
But at the time of Proctor, life imprisonment upon the conviction of a subsequent felony
was mandatory. See K.S.A. 2009 Supp. 75-5217(c). Since then, the statute has been
revised: if an offender commits a new felony on lifetime postrelease supervision, the
prisoner review board has discretion to decide the prison sentence. K.S.A. 2015 Supp. 75-
5217(c). Moreover, in Mossman, our Supreme Court rejected attempts to focus on the
potential consequences of violating lifetime postrelease supervision, finding that those
consequences are distinct from the question of disproportionality. 294 Kan. at 913
(comparison of proportionality is not based solely on length of postrelease supervision).
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The Proctor court relied heavily on the first Freeman factor, reviewing several
factual findings made by the district court: Proctor's young age, lack of criminal record,
and lack of evidence the defendant was a "serial sex offender with a trail of victims"; and
expert testimony that he would benefit from therapy and was not a likely future offender.
2013 WL 6726286, at *4-6. The district court focused specifically on Proctor's history as
a victim of sexual abuse in adolescence, which went untreated, and which distinguished
Proctor's case from prior cases where the offenders "plainly were not replicating conduct
that had been directed toward them." 2013 WL 6726286, at *5. Finally, the court
specifically advised that the ruling was limited to "the facts of [that] case at the time of
Proctor's sentencing and decides only the constitutionality of lifetime postrelease
supervision as to Proctor alone." 2013 WL 6726286, at *1.

Unlike in Proctor, Fishback presented no evidence that his own character is
similar to the factors relied upon in Proctor, such as his risk of recidivism, whether
therapy would help him, or any other personal characteristics such as a history of sexual
abuse. Proctor does not control here. Thus, the district court did not err in rejecting
Fishback's constitutional challenges to lifetime postrelease supervision.

Affirmed.