State v. Malmstrom

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NOT DESIGNATED FOR PUBLICATION

No. 114,794

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JAMES B. MALMSTROM,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed October 7, 2016.
Affirmed.

Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.

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

Before PIERRON, P.J., GREEN and BUSER, JJ.

Per Curiam: James B. Malmstrom appeals the trial court's imposition of lifetime
postrelease supervision following his conviction of two counts of attempted aggravated
indecent liberties with a child. On appeal, Malmstrom argues that the trial court's
imposition of lifetime postrelease supervision constitutes cruel and unusual punishment
under both § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to
the United States Constitution. Nevertheless, none of Malmstrom's arguments on appeal
are persuasive. Accordingly, we affirm the trial court's imposition of lifetime postrelease
supervision.

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In the spring of 2008, Malmstrom was arrested and charged with two counts of
aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(A), which
involves "lewd fondling or touching of the person of either the child or the offender, done
or submitted to with the intent to arouse or satisfy the sexual desires of either the child or
the offender, or both." The State contended that both counts were severity level 1 person
felonies but "punishable by a term of life in prison without the possibility of parole for 25
years." In the first count of aggravated indecent liberties with a child, Malmstrom was
accused of intentionally fondling I.J.E., a 9-year-old female child. In the second count of
aggravated indecent liberties with a child, Malmstrom was accused of fondling S.M.E., a
7-year-old female child. When charged, Malmstrom was 50 years old. Moreover,
Malmstrom is I.J.E. and S.M.E.'s grandfather.

The record on appeal includes very little information about the underlying facts of
Malmstrom's case. What is evident, however, is that Malmstrom confessed to the police
that he molested I.J.E. and S.M.E. Malmstrom's presentence investigation report stated
that "[t]he abuse involved fondling and oral sex." According to one of Malmstrom's
written documents to the court, he stated that he felt "sadness, gr[i]ef, and a great sense of
loss because of [his] actions." In their separate victim statement reports, both I.J.E. and
S.M.E. stated that they "felt scared" when their grandfather touched them.

Malmstrom eventually accepted a plea deal, pleading guilty to two counts of
attempted aggravated indecent liberties with a child in violation of K.S.A. 21-
3504(a)(3)(A) and K.S.A. 21-3301(a), (c). The State's attorney explained that Malmstrom
was given a deal, reducing the completed aggravated indecent liberty with a child counts
to attempted counts, because I.J.E. and S.M.E.'s parents did not want to put the children
through the stress of trial or the stress of knowing they played a role in sending their
grandfather to prison.

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Before sentencing, Malmstrom moved for a durational departure. The trial court
granted the durational departure motion, but it did so because it believed that Malmstrom
would be sentenced to life imprisonment without the possibility of parole for 25 years.
Including the departure, the trial court ultimately sentenced Malmstrom to a total 240
months' imprisonment followed by a term of 36-months' postrelease supervision. The
trial court explained that it was granting the departure motion "based on the wishes of the
victims, the defendant's cooperation in the investigation and the lack of substantial
criminal history."

Malmstrom appealed his sentence to the Kansas Supreme Court. Our Supreme
Court reversed Malmstrom's sentence because although attempted aggravated indecent
liberties with a child required an off-grid lifetime sentence without the possibility of
parole for 25 years under K.S.A. 21-4643, K.S.A. 21-3301(c), the attempt statute,
provided that an attempt to commit an off-grid felony should be sentenced as a severity
level 1 felony. See State v. Malmstrom, 291 Kan. 876, 879, 249 P.3d 1 (2011). Our
Supreme Court held that under the rule of lenity, the trial court was required to sentence
Malmstrom as a nondrug, severity level 1, offender instead of an off-grid offender.
Malmstrom, 291 Kan. at 880-81.

Upon resentencing, Malmstrom was facing a standard prison sentence of 253
months for each count of attempted aggravated indecent liberties with a child. The trial
court again granted Malmstrom's durational departure motion based on the victims
wishes, Malmstrom's cooperation, and Malmstrom's lack of criminal history. The trial
court sentenced Malmstrom to two concurrent 155-month prison sentences followed by a
term of 36 months' postrelease supervision.

Following his resentencing, the State moved to correct illegal sentence. The State
asserted that when Malmstrom committed the two attempted aggravated indecent liberties
with a child counts, K.S.A. 22-3717(d)(1)(G) and (d)(2) required that the trial court
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sentence Malmstrom to a lifetime term of postrelease supervision as opposed to a 36-
month term of postrelease supervision.

The trial court held a hearing on the State's motion. At the hearing, the State
argued that the law required the imposition of lifetime postrelease supervision.
Malmstrom responded that imposition of lifetime postrelease supervision would be cruel
and unusual punishment based on the factors our Supreme Court outlined in State v.
Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978). The trial court disagreed, explaining:

"As indicated by the court in other hearings this morning, the issue is controlled
by the Freeman decision. The court is to consider the Freeman factors. Two of the
factors are legal in nature. That's the nature of the offense as compared, and the penalties
imposed as compared to penalties of similar offenses in other jurisdictions. The second
factor is more serious offenses within the State of Kansas compared to the sentences
imposed for the offense of conviction.
"The court will find neither one of those Freeman factors applies in the case as
has been affirmed on numerous occasions by the appellate courts.
"On a case specific fact under the Freeman decision the court is to consider the
nature of the offense and the character of the offender. Specifically the court's going . . .
to consider the danger to society, the facts of the crime, violent or nonviolent nature of
the offense, extent of culpability and the penological purposes.
. . . .
"The nature of the offense the court finds to be a violent offense with young
victims in a fiduciary relationship. There's no need to go into the facts. Certainly under
any view they would be considered violent and unacceptable in a civilized society.
"Danger to society. The court will find there is a danger to society. Certainly I've
indicted the, the facts of the crime.
"The extent of culpability. Mr. Malmstrom, to his benefit, has always readily
admitted his involvement and has indicated his need that he sees to seek treatment.
Hopefully he's doing that.
"The penological purposes. Certainly the primary purpose would be to see that no
other young children are victimized in any such fashion so that certainly applies. So the
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court will find it does not shock the court's sense to impose the mandatory life postrelease
supervision and it is so ordered."

As a result, the trial court amended Malmstrom's sentence from 36 months'
postrelease supervision to lifetime postrelease supervision on both concurrent counts of
attempted aggravated indecent liberties with a child.

Did the Trial Court Err by Sentencing Malmstrom to Lifetime Postrelease Supervision?

On appeal, Malmstrom argues that the trial court erred when it sentenced him to
lifetime postrelease supervision under K.S.A. 22-3717(d)(1)(G). Malmstrom recognizes
that K.S.A. 22-3717(d)(1)(G) states that persons convicted of sexually violent crimes,
which includes attempted aggravated indecent liberties with a child, are required to serve
"a mandatory period of postrelease supervision for the duration of the person's natural
life." Nonetheless, Malmstrom argues that imposition of lifetime postrelease supervision
was improper because it is grossly disproportionate to the crimes he committed. Thus, he
asserts it is cruel and unusual punishment under § 9 of the Kansas Constitution Bill of
Rights and the Eighth Amendment to the United States Constitution.

First, Malmstrom argues that the imposition of lifetime postrelease supervision
was inappropriate based on the circumstances surrounding his particular case.
Malmstrom asserts that his lifetime postrelease supervision violates § 9 of the Kansas
Constitution Bill of Rights by explaining how the trial court erred in analyzing his case
under the Freeman factors. At the same time, however, Malmstrom asserts that his life-
time postrelease supervision violates the Eighth Amendment to the United States
Constitution under the case-specific proportionality analysis outlined in Graham v.
Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). It seems Malmstrom
recognizes that the Freeman factor analysis is nearly identical to a case-specific
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proportionality analysis, and based on this recognition, he has combined his analysis into
one section.

Second, Malmstrom argues that the imposition of lifetime postrelease supervision
was cruel and unusual under the Eighth Amendment to the United States Constitution
because lifetime postrelease supervision sentences should be categorically prohibited for
persons who have committed attempted aggravated indecent liberties with a child. Using
the categorical analysis approach detailed in Graham, Malmstrom asserts that this
punishment is categorically disproportionate to his crime.

The State responds that Malmstrom's lifetime postrelease supervision does not
violate either § 9 of the Kansas Constitution Bill of Rights or the Eighth Amendment to
the United States Constitution. The State emphasizes that the trial court's reasoning for
rejecting Malmstrom's argument that the imposition of lifetime postrelease supervision
was sound and supported by the evidence. The State further argues that each of
Malmstrom's arguments concerning why the imposition of lifetime postrelease
supervision is cruel and unusual are unpersuasive.

Preservation

Before engaging in further analysis, it is important to point out that Malmstrom is
raising his categorical proportionality challenge to the imposition of lifetime postrelease
supervision for the first time on appeal. Generally, issues not raised below, including
constitutional issues, may not be raised for the first time on appeal. State v. Williams, 298
Kan. 1075, 1084, 319 P.3d 528 (2014). "But there are exceptions to this rule, including
when the claim involves only questions of law, arises on proven or admitted facts, and is
determinative of the case." Williams, 298 Kan. at 1084. One such exception is a
categorical proportionality challenge. Williams, 298 Kan. at 1084. Although Malmstrom
is raising this issue for the first time on appeal, this issue is properly before this court.
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Standard of Review

Typically, appellate courts exercise unlimited review when determining whether a
statute violates a defendant's constitutional rights. State v. Mossman, 294 Kan. 901, 906,
281 P.3d 153 (2012). Yet, when appellate courts determine whether a sentence is cruel or
unusual, "court[s] must make both legal and factual determinations." Mossman, 294 Kan.
at 906. "All of the evidence is reviewed, but not reweighed, to determine if there is
sufficient support for the district court's factual findings, and the district court's legal
conclusions drawn from those facts are reviewed de novo." Mossman, 294 Kan. at 906.

Applicable Law

K.S.A. 22-3717(d)(1)(G) states that "persons convicted of a sexually violent crime
. . . and who are released from prison, shall be released to a mandatory period of
postrelease supervision for the duration of the person's natural life." The crime of
attempted aggravated indecent liberties with a child constitutes a sexually violent crime.
See K.S.A. 22-3717(d)(2)(C) and (K).

Section 9 of the Kansas Constitution Bill of Rights states: "Excessive bail shall not
be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted."
Imposition of lifetime postrelease supervision is statutorily mandated. Our Supreme
Court has explained 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.'" State v. McDaniel & Owens, 228 Kan. 172, 183, 612 P.2d 1231 (1980) (quoting
Freeman, 223 Kan. at 367). Nevertheless, when a statute is challenged as
unconstitutional, courts have a duty to resolve issues in favor of constitutionality if such a
construction can be made. State v. Cameron, 294 Kan. 884, 889, 281 P.3d 143 (2012).

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To determine whether a punishment violates § 9 of the Kansas Constitution Bill of
Rights, courts must analyze challenges under the three-prong test promulgated in
Freeman. The three 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.

"'Ultimately, one consideration may weigh so heavily that it directs the final conclusion,'
but 'consideration should be given to each prong of the test.'" Cameron, 294 Kan. at 890
(quoting State v. Ortega-Cadelan, 287 Kan. 157, 161, 194 P.3d 1195 [2008]). Still, no
single Freeman factor controls. Cameron, 294 Kan. at 890.

The Eighth Amendment to the United States Constitution states: "Excessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted." Under the Eighth Amendment, defendants can make two types of challenges:
(1) that their punishment is disproportional to their crimes based on case-specific
analysis; and (2) that their punishment is disproportional to their crimes based on a
categorical prohibition against a specific punishment for a specific crime. Graham, 560
U.S. at 60-61.

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The first type of challenge—case-specific challenges—are analyzed in a manner
virtually identical to the Freeman factors. In Graham, the United States Supreme Court
explained that courts must review defendants' case specific challenges by

"comparing the gravity of the offense and the severity of the sentence. [Citation omitted.]
'[I]n the rare case in which [this] threshold comparison . . . leads to an inference of gross
disproportionality' the court should then compare 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. [Citation omitted.] If this comparative
analysis 'validate[s] an initial judgment that [the] sentence is grossly disproportionate,'
the sentence is cruel and unusual. [Citation omitted.]" Graham, 560 U.S. at 60 (citing
Harmelin v. Michigan, 501 U.S. 957, 1005, 111 S. Ct. 2680, 115 L. Ed. 2d 836 [1991] ).

The second type of challenge—categorical challenges—are analyzed under a two-
prong test:

"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,' the
Court must determine in the exercise of its own independent judgment whether the
punishment in question violates the Constitution. [Citation omitted.]" Graham, 560 U.S.
at 61.

Succinctly, this test involves determining if there is a legitimate reason for imposing the
specific type of punishment. In Graham, the United States Supreme Court held that
retribution, deterrence, incapacitation, and rehabilitation can all serve as legitimate
reasons for a specific punishment. 560 U.S. at 71.

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Freeman Factors and Case-Specific Analysis

Malmstrom first argues that this court must reverse the trial court's imposition of
lifetime postrelease supervision because it is cruel and unusual punishment in violation of
§ 9 of the Kansas Constitution Bill of Rights under the Freeman factors and in violation
of the Eighth Amendment to the United States Constitution under the identical factors
detailed in Graham. Because Malmstrom combines his Freeman factor analysis
challenging his punishment under § 9 of the Kansas Constitution Bill of Rights with his
Graham factor analysis challenging his punishment under the Eighth Amendment to the
United States Constitution, we will consider these arguments together. Again, both the
Freeman factors and Graham factors require courts to evaluate: (1) the nature or gravity
of the offense and the character of the offender; (2) the punishments for more serious
offenses within Kansas; and (3) the punishment for similar offenses in other jurisdictions.
See Freeman, 223 Kan. at 367; accord Graham, 560 U.S. at 60.

Nature of the Offense and Character of the Offender

To begin with, Malmstrom focuses on the nature of his offenses and his character.
Malmstrom does not assert that the trial court's findings regarding the nature of his
offenses and his character were factually incorrect. Instead, Malmstrom argues that the
trial court failed to take into consideration certain factors that made the imposition of
lifetime postrelease cruel and unusual punishment. Specifically, Malmstrom argues that
the following facts concerning the nature of his offenses and his character support that the
imposition of lifetime postrelease was cruel and unusual punishment: (1) He was
convicted of two counts of attempted aggravated indecent liberties with a child as
opposed to two counts of completed aggravated indecent liberties with a child; (2) he did
not use a weapon to commit the crime, meaning his crime was nonviolent; and (3) he has
no prior sex crime convictions. Nevertheless, none of Malmstrom's arguments are
convincing.
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First, regarding Malmstrom's argument that he was convicted of an attempted
crime instead of a completed crime, it seems Malmstrom makes this argument because
the underlying facts indicate that he did complete two counts of aggravated indecent
liberties with a child. Below, the State explained that it was giving Malmstrom a deal for
attempted crimes, despite his full confession to the police, because the family wanted to
shield the granddaughters from any more trauma. All the same, even without considering
that the crimes were completed, the fact that he was convicted of attempted crimes does
not negate the danger Malmstrom presents to society.

Under K.S.A. 21-3301(a), "an attempt is any overt act toward the perpetration of a
crime done by a person who intends to commit such crime but fails in the perpetration
thereof or is prevented or intercepted in executing such crime." In other words, but for
some intervening act, a person who attempted a crime would have completed the crime.
Thus, persons convicted of attempted crimes pose just as much danger to society as those
who have completed crimes.

Second, although Malmstrom emphasizes that he did not use a weapon, he ignores
that Kansas has deemed that child sex crimes are inherently violent. Our Supreme Court
has explained that sex crimes against minors are "'particularly heinous crimes.'"
Mossman, 294 Kan. at 909 (quoting People v. Dash, 104 P.3d 286, 293 [Colo. App.
2004]). While Malmstrom may not have used a weapon, he, a 50-year-old man, took
advantage of his 7-year-old and 9-year-old granddaughters. Thus, the lack of a weapon
does not weigh in Malmstrom's favor. Moreover, our Supreme Court has recognized that
it is because of the vulnerability of children, the risk of children suffering major long-
term psychological effects from sexual abuse, that the legislature enacted legislation
categorizing child sex crimes as sexually violent crimes. Mossman, 294 Kan. at 909;
K.S.A. 22-3717(d)(2)(C), (K); see also State v. Sutton, No. 114,646, 2016 WL 3460423,
at *3 (unpublished opinion) (where this court rejected the same argument that the lack of
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weapon does not make a child sex crime a nonviolent crime), petition for rev. filed July 1,
2016.

Third, our Supreme Court has previously rejected Malmstrom's argument
regarding lack of prior sex crime convictions. In Mossman, Mossman asserted that his
lack of criminal history made the imposition of lifetime postrelease supervision for his
aggravated indecent liberties conviction unconstitutional. Our Supreme Court held that
even defendants with no criminal history may be sentenced to lifetime postrelease
supervision when other evidence supported the imposition. 294 Kan. at 911-12. For
Mossman, our Supreme Court held that even without any criminal history, imposition of
lifetime postrelease was constitutional "because of [Mossman's] lack of impulse control,
[Mossman's] rebellious character, and [Mossman's] history of drug use." Mossman, 294
Kan. at 911-12.

Here, unlike Mossman, Malmstrom does not have a clean slate. In 1974,
Malmstrom was convicted of residential burglary and theft. Consequently, Malmstrom
already has criminal history supporting that he is more likely to reoffend. More
importantly, Malmstrom was not convicted of just one count of attempted aggravated
indecent liberties with a child, but two counts of attempted aggravated indecent liberties
with a child. Although most of the facts surrounding his crimes are unclear, according to
I.J.E.'s victim statement, she felt guilty for not telling her mother about Malmstrom
touching her inappropriately when it first happened because it allowed Malmstrom to
touch S.M.J. inappropriately at a later date. This means that Malmstrom did not commit
his crime against I.J.E. and his crime against S.M.J. at the same time. Instead, he
committed the crime against I.J.E. and then later committed the crime against S.M.J.
Obviously, this evidence indicates that Malmstrom has engaged in repeated acts of sex
crimes against children. Thus, Malmstrom has predatory tendencies that present a serious
danger to society. Malmstrom's predatory tendencies necessitates the intensive
monitoring connected to lifetime postrelease supervision.
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Finally, it is important to emphasize that lifetime postrelease supervision serves
important penological goals, a fact Malmstrom seemingly ignores in making his analysis.
As the Mossman court noted, lifetime postrelease supervision helps ensure "legitimate
penological goals such as deterrence, incapacitation, and rehabilitation." 294 Kan. at 911.
Moreover, as the State explains in its brief, the goal of deterrence "is particularly
legitimate given sex offenders' higher rate of recidivism."

In summary, none of the case-specific reasons that Malmstrom has offered in
support of his contention that the imposition of lifetime postrelease supervision is cruel
and unusual punishment under § 9 of the Kansas Constitution Bill of Rights or the Eighth
Amendment to the United States Constitution are persuasive. As the trial court found in
ordering lifetime postrelease supervision, the nature of Malmstrom's crimes were violent,
he committed the crimes against very young children, and he the committed the crimes
against children with whom he had a fiduciary relationship. Although Malmstrom has
always admitted culpability for the crimes, this alone does not outweigh the danger to
society he presents and the underlying penological goals of lifetime postrelease
supervision. Accordingly, the imposition of lifetime postrelease supervision was
constitutional based on the nature of Malmstrom's offenses and Malmstrom's character.

Comparison to More Serious Offenses Within Kansas

Next, Malmstrom argues that the imposition of lifetime postrelease supervision
was cruel and unusual punishment because he would have received a less severe
punishment if he had committed a more serious crime. Malmstrom points out that he
would have been sentenced to 36 months' postrelease supervision if he had committed the
following more serious offenses: second-degree murder, voluntary manslaughter,
aggravated kidnapping, aggravated trafficking, electronic solicitation, terrorism and
illegal use of weapons of mass destruction, manufacture of a controlled substance, and
human trafficking. See K.S.A. 22-3717. Malmstrom contends that the fact these crimes
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have shorter postrelease supervision terms is proof that the imposition of lifetime
postrelease supervision for attempted aggravated indecent liberties with a child is cruel
and unusual punishment.

The State responds by citing State v. Toahty-Harvey, 297 Kan. 101, 109, 298 P.3d
338 (2013), for the proposition that Kansas courts have repeatedly held that lifetime
postrelease supervision is not constitutionally disproportionate to the sentences imposed
for more serious crimes in Kansas. This is essentially what the trial court stated below,
ruling that it did not find Malmstrom's argument convincing because appellate courts
have consistently rejected this argument.

Our Supreme Court has consistently rejected the argument that the fact more
serious crimes have shorter postrelease supervision terms in Kansas means that the
imposition of lifetime postrelease supervision for child sex crimes is a disproportionate
punishment. See State v. Funk, 301 Kan. 925, 941-42, 349 P.3d 1230 (2015); Toahty-
Harvey, 297 Kan. at 109; Cameron, 294 Kan. at 892-93. Our Supreme Court has held that
the key for testing disproportionality is not the term of postrelease supervision alone, but
the term of postrelease supervision in conjunction with the term of imprisonment.
Mossman, 294 Kan. at 912-13; Cameron, 294 Kan. at 892-93; see also Sutton, 2016 WL
3460423, at *4-5 (where this court rejected an identical argument based on the fact our
Supreme Court has consistently held that lifetime postrelease supervision for child sex
crime convictions is not disproportionate to the punishments for more serious crimes).

At the end of his brief, Malmstrom asserts that this court should distinguish his
case from Mossman and Cameron like this court did in State v. Proctor, No. 104,697,
2013 WL 6762296 (Kan. App. 2013) (unpublished opinion). In Proctor, this court
recognized that the Mossman court rejected the argument that the length of postrelease
supervision for defendants convicted of child sex crimes was disproportionate to similar
or more serious offenses within Kansas. 2013 WL 6762296, at *6-7. Nevertheless, the
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Proctor court held that this fact does "not directly address the extraordinary vice built
into lifetime postrelease supervision—the doomsday consequences for later being
convicted of any felony." 2013 WL 6762296, at *7. Specifically, the Proctor court took
issue with the fact that Proctor, who was 19 years old when he committed an aggravated
indecent solicitation of a child, could be sent to prison for even a minor felony, like
passing a bad check, for the rest of his life if he were to commit this crime while serving
lifetime postrelease supervision. See K.S.A. 2009 Supp. 75-5217(c). The Proctor court
emphasized that lifetime postrelease supervision "ceases to promote rehabilitation if an
offender is returned to prison for life for a felony conviction." 2013 WL 6726286, at *6.
Accordingly, the Proctor court held that the imposition of lifetime postrelease
supervision violated § 9 of the Kansas Constitution Bill of Rights under the second
Freeman factor. 2013 WL 6726286, at *8. Based on Proctor's reasoning, Malmstrom
argues that his punishment is cruel and unusual because he will be disproportionally
punished for future criminal conduct.

Yet, there are two reasons why Malmstrom's reliance on Proctor is unpersuasive.
First, when Proctor was decided, K.S.A. 2009 Supp. 75-5217(c) mandated life
imprisonment for any new felony conviction committed while serving lifetime
postrelease supervision. In 2013, however, the legislature amended this provision,
allowing the prisoner review board to determine the appropriate term of confinement for
a new felony conviction while serving postrelease supervision. See K.S.A. 2015 Supp.
75-5217(c). Thus, 2015 Supp. K.S.A. 75-5217(c) no longer carries the same "doomsday
consequences for later being convicted of any felony." Proctor, 2013 WL 6762296, at *7.

Second, our Supreme Court has disapproved of Proctor's holding. In Funk, when
Funk relied on Proctor for the proposition that lifetime postrelease supervision was
unconstitutional because he could commit any new felony and return to prison for life,
our Supreme Court rejected Funk's argument by stating: "But the short answer is to recall
that we have already disavowed considering what might happen if a defendant happens to
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commit a subsequent felony." 301 Kan. at 938. The Funk court then pointed out that in
Mossman, it distinguished "between the potential consequences for violating postrelease
supervision conditions by committing [a] new felony and those for the crime actually
committed, i.e., imposition of lifetime postrelease supervision." Funk, 301 Kan. at 938
(citing Mossman, 294 Kan. at 915-16).

Absent some indication our Supreme Court is departing from its previous position,
this court is duty bound to follow our Supreme Court precedent. State v. Ottinger, 46
Kan. App. 2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). As a
result, precedent dictates that this argument is fatally flawed. Consequently, the
imposition of lifetime postrelease supervision for Malmstrom's attempted aggravated
indecent liberties with a child convictions was not disproportionate to the sentences for
more serious crimes committed in Kansas.

As a final note, although the State has not mentioned this argument in its brief, it is
also important to point out that Malmstrom was convicted of a severity level 1 person
felony. See K.S.A. 21-3301(c); K.S.A. 21-3504(a)(3)(A); Malmstrom, 291 Kan. at 879.
Moreover, if Malmstrom had committed his crimes following the recodification of the
criminal code in 2011, his crimes of attempted aggravated indecent liberties with a child
would have constituted off-grid person felonies. See K.S.A. 2015 Supp. 21-
5506(b)(3)(A), (c)(3). Regardless, outside of second-degree murder, which the United
States Supreme Court has recognized as a more serious crime, all of the crimes
Malmstrom asserts are more serious crimes are severity level 1, 2, or 3 felonies. See
Kennedy v. Louisiana, 554 U.S. 407, 128 S. Ct. 2641, 171 L. Ed. 2d 525, opinion
modified on denial of reh'g 554 U.S. 945 (2008). Thus, most of Malmstrom's
comparisons to sentences for other Kansas crimes are off the mark because his
comparisons involve equally serious or less serious offenses.

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Comparison to Similar Offenses in Other Jurisdictions

Last, Malmstrom argues that a comparison of Kansas' mandatory imposition of
lifetime postrelease supervision for his attempted aggravated indecent liberties with a
child convictions to other states' punishments for similar crimes establishes that the
punishment is cruel and unusual. Specifically, Malmstrom argues that "18 states,
including Kansas, impose mandatory lifetime postrelease sentences for K.S.A. 21-
3504(a)(3)(A)—like offenses." But then Malmstrom continues by asserting that of those
18 states, only 12 states mandate lifetime postrelease supervision for attempted crimes.
Next, Malmstrom asserts that only 4 of those 12 states make the sentence irrevocable, and
only 2 of those 4 states—Kansas and Nebraska—mandate irrevocable lifetime postrelease
supervision for a first-time attempted child sex crime.

The State responds by asserting that this court should affirm the trial court's
rejection of this argument because Kansas courts have consistently held that Kansas'
imposition of lifetime postrelease supervision for child sex crimes is not disproportionate
to the punishment imposed for similar crimes in other jurisdictions. Again, the State is
correct. In both Mossman and Cameron, after comparing Kansas' punishment for child
sex crimes to punishments in other states, our Supreme Court held that the imposition of
lifetime postrelease supervision was not cruel or unusual. Mossman, 294 Kan. at 919-20;
Cameron, 294 Kan. at 894-95.

In Mossman, for instance, our Supreme Court recognized that "only a handful of
states impose punishment as absolute as Kansas' requirement." 294 Kan. at 920. Yet, our
Supreme Court held that such punishment was not cruel and unusual because that
"Kansas is not alone in imposing mandatory lifetime postrelease supervision for crimes
such as Mossman's [aggravated indecent liberties with a child conviction], 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. Furthermore, our
18

Supreme Court has continued to stand by this holding even when defendants have been
convicted of attempted child sex crimes. See Funk, 301 Kan. at 942-43 (where our
Supreme Court held that the imposition of lifetime postrelease supervision was not
disproportionate to sentences in other jurisdictions when Funk had been convicted of
attempted indecent solicitation of a child, a level 8 person felony).

In his analysis, Malmstrom has never asserted that there has been a wave of
change in the laws in other jurisdictions. Accordingly, our Supreme Court's holdings in
Mossman, Cameron, and Funk are still good law. In turn, Malmstrom's argument is
flawed.

Conclusion under Case-Specific Factors

Each of Malmstrom's arguments why the trial court's imposition of lifetime
postrelease supervision is cruel and unusual punishment in violation of § 9 of the Kansas
Constitution Bill of Rights under the Freeman factors and in violation of the Eighth
Amendment to the United States Constitution under the substantively identical Graham
factors fail. Malmstrom's arguments have been consistently rejected by Kansas appellate
courts. Moreover, based on the nature of Malmstrom's crimes and his character, the trial
court's finding that it was neither cruel nor unusual punishment to impose lifetime
postrelease supervision was supported by sufficient evidence and appropriate under
Kansas law.

Categorical Analysis under the Eighth Amendment to the United States Constitution

Finally, Malmstrom argues that the imposition of lifetime postrelease supervision
was cruel and unusual punishment under the Eighth Amendment to the United States
Constitution because such punishment is categorically disproportionate to the crime of
attempted aggravated indecent liberties with a child. Under the categorical analysis
19

approach, courts must consider the proportionality of lifetime postrelease supervision for
Malmstrom's specific convictions, i.e., attempting to commit "lewd fondling or touching
of the person of either the child or the offender, done or submitted to with the intent to
arouse or to satisfy the sexual desires of either the child of the offender, or both." See
K.S.A. 21-3504(a)(3)(A); K.S.A. 21-3301(a).

Again, this analysis involves a two-prong test where this court must: (1)
"consider[] [the] '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"; and (2) consider whether the punishment is cruel and
unusual based on "'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.'" Graham, 560 U.S. at 61.

National Consensus Against Lifetime Postrelease Supervision

Repeating his analysis about Kansas and Nebraska being the only states that
mandate irrevocable lifetime postrelease supervision for first-time attempted child sex
crimes, Malmstrom argues that there is a national consensus against lifetime postrelease
supervision for his convictions. Malmstrom provides no other argument explaining why a
national consensus against lifetime postrelease supervision exists.

Nevertheless, this court has rejected this exact argument in State v. Reed, 51 Kan.
App. 2d 107, 341 P.3d 616 (2015), rev. denied 304 Kan. ___ (April 16, 2016). Reed, like
Malmstrom, had been convicted of attempted aggravated indecent liberties with a child.
Moreover, Reed, like Malmstrom, argued that there was a national consensus against
lifetime postrelease supervision for his crime because "[o]ther than Kansas, Nebraska is
the only state that imposes mandatory lifetime postrelease supervision on individuals for
a first time attempted indecent touching offense." 51 Kan. App. 2d at 111. The Reed court
20

rejected that argument because even though only two states imposed lifetime postrelease
supervision for Reed's specific offense of attempted aggravated indecent liberties with a
child, his offense fell under a broader class of sexually violent crimes. 51 Kan. App. 2d at
112-13. The Reed court explained that under the broader class of sexually violent crimes,
imposition of lifetime postrelease supervision is not rare but "a widespread
phenomenon." 51 Kan. App. 2d at 113; see also Sutton, 2016 WL 3460423, at *8; State v.
Hindman, No. 110,261, 2014 WL 5312925, at *6-7 (Kan. App. 2014) (unpublished
opinion), rev. denied 302 Kan. 1015 (2015); State v. Russell, No. 107,588, 2013 WL
3867180, at *4-6 (Kan. App. 2013) (unpublished opinion), rev. denied 299 Kan. 1273
(2014); State v. Barrera, No. 104,664, 2013 WL 517581, at *9-10 (Kan. App. 2013)
(unpublished opinion), rev. denied 297 Kan. 1248 (2013).

In summary, this court has previously rejected an identical argument. Nothing in
Malmstrom's brief provides any new analysis why the reasoning in Reed is flawed. Thus,
following Reed's precedent, it is readily apparent that Malmstrom's argument regarding a
national consensus is unpersuasive.

Exercise of Independent Judicial Discretion

Next, Malmstrom argues that the imposition of lifetime postrelease supervision for
attempted aggravated indecent liberties with a child convictions does not serve any
legitimate penological goals. Specifically, Malmstrom argues that his lifetime postrelease
supervision does not serve the goals of retribution, deterrence, incapacitation, or
rehabilitation.

Regarding retribution, Malmstrom argues that his sentence fails to be directly
related to his actual culpability because the more serious offense of second-degree
murder has a shorter postrelease supervision term. Yet, as previously discussed, our
Supreme Court has held that the key for determining disproportionality is not the term of
21

postrelease supervision alone, but the term of postrelease supervision in conjunction with
the term of imprisonment. Mossman, 294 Kan. at 912-13; Cameron, 294 Kan. at 892-93.
As a result, this same logic negates Malmstrom's arguments concerning the retributive
purposes of lifetime postrelease supervisions.

Regarding deterrence, Malmstrom argues that any deterrence benefits cannot
justify lifetime postrelease supervision. Malmstrom hinges this argument on the idea that
lifetime postrelease supervision is grossly disproportionate to the crime of attempted
aggravated indecent liberties with a child. Nevertheless, as considered at length already,
Kansas courts have consistently held that lifetime postrelease supervision is not grossly
disproportionate punishment in child sex crime cases. See Funk, 301 Kan. at 941-42;
Toahty-Harvey, 297 Kan. at 109; Cameron, 294 Kan. at 892-93; Mossman, 294 Kan. at
912-13. Because Malmstrom's argument regarding deterrence hinges on an argument that
has been consistently rejected by our Supreme Court, he has failed to establish that there
are no legitimate penological deterrence goals connected to the imposition of lifetime
postrelease supervision.

Regarding incapacitation, Malmstrom recognizes that pedophiles have a higher
rate of recidivism. Yet, Malmstrom argues that the goals of incapacitation cannot be one
size fits all. Regarding rehabilitation, Malmstrom argues that rehabilitation cannot be an
underlying goal of lifetime postrelease supervision because no matter how much
offenders improve, they will never be released from lifetime postrelease supervision.

Nevertheless, our Supreme Court has held that the goals of incapacitation and
rehabilitation are very important penological purposes of lifetime postrelease supervision.
Mossman, 294 Kan. at 930; Cameron, 294 Kan. at 898. For example, in Cameron our
Supreme Court quoted United States v. Williams, 636 F.3d 1229, 1234 (9th Cir. 2011), in
explaining that incapacitation and rehabilitation are "'are central purposes of the criminal
justice system, and they are particularly critical here given the propensity of sex offenders
22

to strike again." 294 Kan. at 898. Moreover, the Cameron court explained that
"'[s]upervised release can further the end of rehabilitating sex offenders. . . . Relatedly,
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.'" 294 Kan. at 898 (quoting Williams, 636 F.3d at
1234).

Because our Supreme Court has held that lifetime postrelease supervision serves
the legitimate penological goals of incapacitation and rehabilitation, Malmstrom cannot
successfully argue that lifetime postrelease supervision is categorically disproportionate
punishment in violation of the Eighth Amendment to the United States Constitution. As
the Reed court aptly explained:

"While we recognize that lifetime postrelease supervision is a severe sanction,
and we understand that reasonable people can take the view that such a sanction is too
harsh, the legislature, in its considered judgment as representatives of the people, has
determined such a sanction to be appropriate in such cases. [A defendant] cannot show
that the Kansas Supreme Court's rulings on this subject do not apply to [his or her] crime
of attempted aggravated indecent liberties with a child, and we do not find that the
imposition of lifetime postrelease supervision is categorically cruel and unusual
punishment." 51 Kan. App. 2d at 114-15.

Thus, for the foregoing reasons, Malmstrom's arguments that the imposition of lifetime
postrelease supervision are categorically cruel and unusual punishment must fail.

In Summary

Although Malmstrom has argued that the imposition of lifetime postrelease
supervision is categorically disproportional to his crimes of attempted aggravated
indecent liberties with a child, his punishment is not disproportionate to punishments in
23

other states, and his punishment serves legitimate penological goals. Nothing Malmstrom
has argued on appeal distinguishes his case from cases where this court and our Supreme
Court have ruled against the position for which he argues. As a result, Malmstrom has
failed to establish that the imposition of lifetime postrelease supervision is cruel and
unusual punishment under the Eighth Amendment to the United States Constitution.

Affirmed.