State v. McDonald

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NOT DESIGNATED FOR PUBLICATION

No. 114,385

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

SCOTT MCDONALD,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed July 15,
2016. Affirmed.

Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.

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

Before POWELL, P.J., PIERRON and ATCHESON, JJ.

Per Curiam: Scott McDonald pled to three sex offenses and received 260 months'
imprisonment and 36 months' postrelease supervision. Nearly 5 years after McDonald
was sentenced, the district court granted the State's motion to correct an illegal sentence
and imposed lifetime postrelease supervision. McDonald argues on appeal that his
sentence to lifetime postrelease supervision is disproportionate and therefore
unconstitutional under § 9 of the Kansas Constitution Bill of Rights and the Eighth
Amendment to the United States Constitution. We disagree and affirm.

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FACTUAL AND PROCEDURAL BACKGROUND

In 2010, Scott McDonald pled no contest to one count of attempted aggravated
indecent liberties with a child and guilty to one count each of indecent liberties with a
child and criminal sodomy. This plea arose from the State's desire to protect the victims
from testifying. During a span of at least 2 years, McDonald sodomized, raped, and
molested his two teenaged daughters over 280 times. The district court sentenced
McDonald to 260 months' imprisonment with 36 months' postrelease supervision.

On April 22, 2015, the State filed a motion to correct an illegal sentence, arguing
the legal postrelease period should be for McDonald's lifetime. At the hearing on the
motion McDonald did not contest that K.S.A. 2010 Supp. 22-3717(d) required lifetime
postrelease supervision but argued that imposition of such postrelease supervision was
unconstitutional under the Kansas Constitution. McDonald's attorney briefly mentioned
the United States Constitution but did not make an Eighth Amendment argument at the
hearing.

After making factual and legal findings on the record, the district court granted the
State's motion and imposed lifetime postrelease supervision upon McDonald for his
convictions.

McDonald timely appeals.

IS THE IMPOSITION OF LIFETIME POSTRELEASE SUPERVISION
CRUEL AND/OR UNUSUAL PUNISHMENT UNDER
THE UNITED STATES AND KANSAS CONSTITUTIONS?

McDonald argues on appeal that his sentence to lifetime postrelease supervision is
disproportionate and therefore unconstitutional according to § 9 of the Kansas
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Constitution Bill of Rights and the Eighth Amendment to the United States Constitution.
We note that McDonald did not raise his proportionality challenge under the Eighth
Amendment before the district court other than in a passing reference, which would
typically preclude our review. However, because the analysis for disproportionate
challenges under both the Kansas and United States Constitutions is similar, for reasons
we will explain, we will address both. See State v. Mossman, 294 Kan. 901, 924, 281
P.3d 153 (2012) (Eighth Amendment case-specific inquiry requires examination of
whether sentence is disproportionate under circumstances of case and then comparison of
punishment with other crimes); State v. Reed, 51 Kan. App. 2d 107, 109, 341 P.3d 616
(2015) (two types of proportionality challenges, one of which involves allegation that
sentence imposed is disproportionate under Kansas and United States Constitutions in
light of circumstances of particular case), rev. denied 304 Kan. ___ (April 21, 2016).

Constitutional challenges to a statute ordinarily raise questions of law which are
subject to our unlimited review. State v. Seward, 289 Kan. 715, 718, 217 P.3d 443
(2009). However, when deciding whether a sentence is disproportionate in light of the
circumstances of a particular case, a district court is required to make both legal and
factual determinations. See, e.g., State v. Ortega-Cadelan, 287 Kan. 157, 160, 194 P.3d
1195 (2008). Accordingly, on review, "an appellate court applies a bifurcated standard of
review: 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. [Citations omitted.]"
Mossman, 294 Kan. at 906.

The Eighth Amendment, which is applicable to the states through the Fourteenth
Amendment, provides: "Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted." The United States Supreme Court
has declared 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
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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) (quoting
Weems v. United States, 217 U.S. 349, 367, 30 S. Ct. 544, 54 L. Ed. 793 [1910]).

Section 9 of the Kansas Constitution Bill of Rights states in part that "[e]xcessive
bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment
inflicted." Our Supreme Court has held that a sentence "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. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978).
To assist in making that determination, the Freeman court set out the following three-
factor test:

"(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.

A single factor does not control an appellate court's decision. Mossman, 294 Kan. at 908.

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1. The first Freeman factor

The first Freeman factor requires us to make a case-specific determination
regarding the nature of the offense and the character of the offender. 223 Kan. at 367.
McDonald argues the first factor weighs in his favor as no penological purposes are
served by his postrelease supervision because he has no prior criminal history and he is
no longer a danger to society because he has taken responsibility for his crimes against
his daughters.

McDonald was convicted of attempted aggravated indecent liberties with a child,
indecent liberties with a child, and criminal sodomy. The Kansas Legislature has
determined that indecent liberties with a child and criminal sodomy are, by their very
nature, sexually violent crimes. See K.S.A. 2010 Supp. 22-3717(d)(1)(G)(2)(B), (D).
Similarly, this court has repeatedly held that the "'attempt' nature of a conviction does not
remove it from the general category of sexually violent crimes subject to lifetime
postrelease supervision." Reed, 51 Kan. App. 2d 107, Syl. ¶ 6. Such offenses—sex crimes
against minors—are generally recognized as "'particularly heinous crimes.''' Mossman,
294 Kan. at 909 (quoting People v. Dash, 104 P.3d 286, 293 [Colo. App. 2004]). Society
has a penological interest in punishing sex offenders because they are dangers to society
and their crimes cause harmful effects on victims, which is why the legislature has
determined to treat sex crimes against minors as violent felonies even if no physical force
was involved. See 294 Kan. at 909.

McDonald relies on State v. Proctor, No. 104,697, 2013 WL 6726286 (Kan. App.
2013), arguing that the nature of the offenses involved and his character cause lifetime
postrelease supervision to be unconstitutional. In Proctor, the defendant was 19 years old
and his victim was 12 years old; he received probation, had no prior criminal history, and
had been sexually abused as a child but had not received treatment; and the illicit contact
occurred over a span of months. Here, McDonald's victims were his own daughters, and
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the illicit contact occurred over 280 times for years. At the time of his sentencing,
McDonald was 39 years old, not barely an adult like Proctor. McDonald received 260
months' imprisonment, not probation. Although McDonald had no prior criminal history,
there is no indication in the record on appeal that McDonald was sexually abused as a
child.

When discussing the first Freeman factor at McDonald's resentencing the district
court stated:

"[A]t the time that we disposed of this case back in August of 2010, five years ago, Mr.
McDonald in his mind justified what he was doing. He knew it was against the law but he
did it anyway and that doesn't really then militate in his favor in terms of character.
There's not much to say favorable on the character issue.

"With respect to the nature of the crime these are the kind of crimes that were
committed over a period of time and were allowed to go on for a period of time by the
exercise of Mr. McDonald of power or influence over his daughters and as a result of that
is serious damage to them psychologically. Hopefully, they're recovering from that.

". . . [Y]our grief changes over time and I suspect that the girls will be changing
in how they deal with this as time goes on but it's never going to be over but the repeated
nature and the exercise of the authority by Mr. McDonald militates against finding that
this lifetime post release is unconstitutional . . . ."

Such a finding is similar to the Kansas Supreme Court's determination in
Mossman. There, the Supreme Court upheld the imposition of lifetime postrelease
supervision for a 25-year-old defendant who had a consensual sexual relationship with a
15-year-old girl, stating the State had an overriding interest in protecting children from
such crimes and the defendant's crime was one deemed a violent sexual offense by the
legislature. 294 Kan. at 909-10. Even considering Mossman's lack of criminal history,
low risk of recidivism, acceptance of responsibility, and level of remorse, our Supreme
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Court held the first Freeman factor weighed in favor of finding Mossman's sentence
constitutional. 294 Kan. at 912.

Here, after reviewing but not reweighing all of the evidence, there is sufficient
evidence to support the district court's finding that McDonald's deficient character was
not outweighed by mitigating circumstances. The first Freeman factor weighs towards
finding McDonald's sentence constitutional.

2. The second Freeman factor

The second Freeman factor requires us to look at the punishment being challenged
as unconstitutional and compare it to other punishments in the state for other more
serious crimes to determine if the sentence is grossly disproportionate. 223 Kan. at 367.
McDonald argues that lifetime postrelease supervision for attempted aggravated indecent
liberties and criminal sodomy is greater than the postrelease supervision period for
second-degree murder. He also argues that the lifetime postrelease supervision period for
aggravated indecent liberties is longer than the postrelease supervision periods for
second-degree murder, aggravated kidnapping, aggravated human trafficking, and
electronic solicitation of a child, yet those crimes are of a higher severity level.

McDonald's argument is nearly identical to one our Supreme Court addressed in
Mossman. There, the court noted that while the overall sentence for someone convicted
of second-degree murder may be shorter, a defendant sentenced to lifetime postrelease
supervision has the opportunity to serve most of the sentence "in a less restrictive
environment." 294 Kan. at 913. The Mossman court determined that lifetime postrelease
supervision was not disproportionate to the sentence a defendant could receive for
second-degree murder based on penological purposes, the seriousness of the crime, and
the first Freeman factor concerns. 294 Kan. at 917. It concluded that the difference in
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proportionality between the two sentences did not cause the second Freeman factor to
outweigh the first. 294 Kan. at 917.

Likewise, while McDonald's overall sentence may be longer than it would have
been had he been convicted of one of the crimes listed in his brief, he has the opportunity
to serve the majority of his sentence outside of prison. As in Mossman, the second
Freeman factor does not outweigh the first Freeman factor in this case. In short,
McDonald is essentially making the same argument that was rejected in Mossman. As we
are bound to follow Kansas Supreme Court precedent absent some indication it is
departing from its previous position, we are also compelled to reject McDonald's
arguments. State v. Belone, 51 Kan. App. 2d 179, 211, 343 P.3d 128, rev. denied 302
Kan. ___ (September 14, 2015).

3. The third Freeman factor

The third Freeman factor requires us to look at the punishment being challenged
as unconstitutional and compare it to punishment for the same crime in other states to
determine if the sentence is grossly disproportionate. 223 Kan. at 367. McDonald first
argues that his sentence for attempted aggravated indecent liberties with a child is
disproportionate under the third Freeman factor because only two states—Kansas and
Nebraska—allow for lifetime postrelease supervision for a person convicted of a similar
offense and two other states—Minnesota and Oklahoma—allow for lifetime postrelease
supervision for similar offenses only when such person has a prior sex offense
conviction.

McDonald also argues that his sentence for aggravated indecent liberties with a
child is disproportionate under the third Freeman factor because only five states,
including Kansas, impose lifetime postrelease supervision for first time offenders
committing the same offense. He mentions that 16 other states only impose mandatory
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lifetime postrelease supervision for crimes similar to McDonald's when the person is a
repeat offender. Finally, McDonald argues that although numerous other jurisdictions
have similar sentences for criminal sodomy, this factor is immaterial because not every
Freeman factor need weigh in his favor and the other Freeman factors weigh against the
constitutionality of his sentence.

Unfortunately for McDonald, his arguments are nearly identical to those made in
Mossman, where our Supreme Court stated:

"[E]ven when adding the third Freeman factor into the equation and considering that
Kansas' provision is more severe than most other jurisdictions, we do not find the
sentence to be cruel or unusual. Mossman's offense is serious and is a sex crime against a
minor that historically has been treated as a forcible or violent felony regardless of
whether there is physical force. Mossman exhibited characteristics of poor impulse
control, rebelliousness, and a history of drug abuse. And legitimate penological goals—
retribution, deterrence, incapacitation, and rehabilitation—are furthered by lifetime
postrelease supervision. These factors outweigh the lack of strict proportionality with
other sentences in Kansas and other jurisdictions, especially given that the sentence is not
grossly disproportionate." 294 Kan. at 920-21.

Therefore, as with the other two factors, the third Freeman factor also weighs against
McDonald.

We also find that McDonald's punishment is not disproportionate under the Eighth
Amendment. While this issue typically would not be considered given that McDonald
never explains why it should be considered for the first time on appeal, State v. Williams,
298 Kan. 1075, 1085, 319 P.3d 528 (2014), because we can easily dispense with the issue
and thereby eliminate needless future litigation, we will do so.

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An Eighth Amendment case-specific proportionality challenge involves a two-part
test.

"'A court must begin 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.]'" Mossman, 294 Kan. at 922 (quoting Graham, 130 S. Ct. at 2022).

In Mossman, although the district court limited its findings to those required by
Freeman, our Supreme Court held that such findings coincided with the case-specific
proportionality factors under the Eighth Amendment and held that because Mossman's
sentence was not disproportionate under the Kansas Constitution, it also was not
disproportionate under the Eighth Amendment, eliminating the need to engage in the
secondary comparison analysis. 294 Kan. at 922, 924. The same is true here. Because
McDonald's sentence is not disproportionate under the Kansas Constitution, it is not
disproportionate under the Eighth Amendment either.

McDonald's crimes were serious and were committed against minors. McDonald
does not explain how his case is different than Mossman nor does he provide us with any
new arguments that would entitle him to relief. In State v. Toahty-Harvey, 297 Kan. 101,
109, 298 P.3d 338 (2013), the defendant made the same arguments that were made in
Mossman without providing any new reasoning, and our Supreme Court relied on the
holding of Mossman. Thus, based on the clear precedent found in Mossman and the
serious and heinous nature of McDonald's offenses, his sentence of lifetime postrelease
supervision is not cruel and/or unusual punishment under the Kansas and United States
Constitutions.
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Affirmed.