State v. Nall

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NOT DESIGNATED FOR PUBLICATION

No. 113,051

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TRAVIS NALL,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed
November 25, 2015. Affirmed.

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

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

Before ARNOLD-BURGER, P.J., ATCHESON, J., and WALKER, S.J.

Per Curiam: Travis Nall appeals the district court's decision finding that a lifetime
postrelease sentence was constitutional as applied to him. After reviewing the record on
appeal, we agree with the district court and affirm.

FACTS

In February 2011, Nall, who was 21 years old, was charged with one count of
indecent liberties with a child, one count of criminal sodomy, one count of aggravated
burglary, one count of aggravated assault, and two counts of battery. The sex offenses
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arose out of Nall's relationship with 14-year-old C.B. The other charges were filed after
Nall forced himself inside the girl's home, threatening the people inside by using a knife
and choking the girl.

Nall and the State reached an agreement which allowed him to plead guilty to one
count of indecent liberties, one count of aggravated burglary, and one count of
aggravated assault. In exchange for his plea, the State agreed to dismiss the remaining
counts. The district court accepted Nall's plea. After denying a motion to depart, the
district court sentenced Nall to serve 52 months' imprisonment with 24 months'
postrelease supervision.

In July 2014, nearly 3 years after Nall was sentenced, the Kansas Department of
Corrections advised the district court that Nall's sentence was illegal because he should
have received a term of lifetime postrelease supervision. A journal entry nunc pro tunc
was prepared. Nall promptly objected, arguing that a lifetime postrelease sentence was
unconstitutional as applied to the facts of his case.

The district court heard arguments from counsel regarding the appropriateness of
lifetime postrelease for Nall. After considering those arguments and conducting the
analysis required by State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978), the district
court concluded that given the facts of this case, the lifetime postrelease sentence was
constitutionally permissible. The journal entry nunc pro tunc was filed to reflect the
lifetime postrelease sentence. Nall timely appeals the district court's decision to this
court.

ANALYSIS

On appeal, Nall contends that the sentence imposed by the district court is
effectively a life sentence. He takes issue with all of the district court's Freeman analysis.
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Standard of review

Nall's lifetime postrelease sentence resulted from the application of sentencing
statutes. Resolution of this appeal requires a constitutional analysis of these statutes.
Determining a statute's constitutionality is a question of law subject to unlimited review.
The appellate courts presume statutes are constitutional and must resolve all doubts in
favor of a statute's validity. Courts must interpret a statute in a way that makes it
constitutional if there is any reasonable construction that would maintain the legislature's
apparent intent. State v. Soto, 299 Kan. 102, 121, 322 P.3d 334 (2014).

The Freeman factors

In Freeman, the Kansas Supreme Court established guidelines that are to be used
when evaluating whether the length of a sentence "offends the constitutional prohibition
against cruel punishment." 223 Kan. at 367. The factors that must be examined are:

1. The "nature of the offense and the character of the offender" must be examined,
with "particular regard to the degree of danger present to society." Relevant
inquiries include the facts of the crime, whether the crime was violent, the
extent of the defendant's culpability for the victim's injuries, and the
penological purposes for the punishment;
2. The comparative length of the punishment for the crime of conviction versus
punishments imposed in this jurisdiction for "more serious offenses." To the
extent that a more serious crime is punished less severely, the sentence in
question is "suspect"; and
3. The comparative length of punishments in other jurisdictions for the identical
offense. 223 Kan. at 367.


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The nature of the offense

Nall stresses that the inquiry surrounding the first Freeman factor must be
individualized for both the offense and the offender. In particular, Nall rejects the idea
that any sex crime involving a minor automatically warrants lifetime postrelease.

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 presented to society. Factors that should be considered include whether the
offense is violent, the extent of the offender's culpability for the resulting injury, and the
penological purposes of the punishment. State v. Ross, 295 Kan. 424, 426, 284 P.3d 309
(2012).

In this case, it is undisputed that Nall and C.B. were involved in a sexual
relationship over a period of months. Nall knew that C.B. was under age 16. That
relationship came to light after an incident where Nall forced his way inside C.B.'s home
and threatened both her and another person with a knife. Nall choked C.B. with his hands
until he was physically restrained by another individual. Nall claimed that he was under
the influence of alcohol at the time of the event and believed that the alcohol was a
"contributing factor to the criminal activity."

Nall underwent a psychosexual evaluation prior to the imposition of the lifetime
postrelease sentence. On one test, the STATIC-99, Nall's score placed him in the
"Moderate High" risk category; however, the practitioner who administered the test
thought this score was inflated and that Nall more likely belonged in the "Moderate Low"
range. When asked about his relationship with C.B., Nall said that his conviction was
"'kind of surprising'" because he was not aware that there was an actual legal age of
consent. When asked whether he thought he needed sex offender treatment, Nall
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answered, "'I don't know.'" The social worker who evaluated Nall believed that Nall's
behavior was the result of "poor decision-making."

To the extent that they are known, the facts in this case closely mirror those found
in State v. Mossman, 294 Kan. 901, 281 P.3d 153 (2012). In that case, the 25-year-old
defendant was living with the family of the 15-year-old victim; during his stay with the
family, the defendant and the victim began a sexual relationship. That sexual relationship
continued for a period of time before the victim disclosed its existence in an interview.
The defendant was found by the district court to act impulsively. In addition, Mossman
was scored to have a low risk of recidivism.

When analyzing the first Freeman factor in Mossman, the Kansas Supreme Court
noted that sex offenses against minors are "'considered particularly heinous crimes.'" 294
Kan. at 909. For that reason, even though Mossman's relationship with his victim was not
violent, the Kansas Supreme Court rejected Mossman's argument that a lifetime
postrelease sentence was a disproportionate punishment for the crime committed. In so
deciding, the court noted that while the 15-year-old victim "may have believed she was
mature enough to be a willing participant in the sexual acts" and was perhaps less
vulnerable than a younger child, Kansas law recognizes that 15 year olds are children and
are "deserving of the State's protection." 294 Kan. at 910.

A close examination of another of our Supreme Court's decision in a similar case,
State v. Funk, 301 Kan. 925, 349 P.3d 1230 (2015), sheds further light on how to apply
the first Freeman factor.

In Funk, the defendant was convicted of attempted indecent solicitation of a child,
a severity level 8 person felony. The district court accepted arguments that the 14-year-
old female victim actually instigated the crime without request or force, and that she
suffered no injury. The court also noted that the defendant was a passive participant in the
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sexual activity and had no prior sex offenses. The defendant was granted probation in the
case. After hearing arguments, the district court ordered lifetime postrelease supervision
because it concluded it was required to do so, but railed against the injustice of its
application in the case.

Our Supreme Court affirmed both the district court and Court of Appeals decisions
which had ordered Funk to be subject to lifetime postrelease supervision. It held that
these facts did not tip the first Freeman factor in favor of Funk. Citing Mossman and
similar cases, our high court noted that "[i]llegal sexual intercourse with a minor is a
serious offense, and the victims of those crimes are legally considered incapable of
consenting to such acts. [Citation omitted.] And to the extent Funk argues [the victim]
was not harmed, we have also rejected similar arguments based on a supposed lack of
physical harm to the victim." 301 Kan. at 939-40.

Nall is correct when he asserts in his appellate brief that some of the reasons cited
by the district court when making its decision are not supported by evidence in the
record. However, we think the facts which clearly are in the record support the district
court's ultimate conclusion, and thus any additional findings beyond those were harmless
error by the district court. The conclusions of our Supreme Court in finding the first
Freeman factor present under the facts of the Mossman and Funk decisions cause us to
conclude that factor is also justified under the facts of Nall's crime.

In Ross, the Kansas Supreme Court noted that postrelease supervision is a "less
onerous" sentence than a life term of incarceration. 295 Kan. at 427. That is perhaps
especially true in this case, where Nall has already served his complete prison sentence
and has been released into the community. The court also noted in Ross that lifetime
postrelease was appropriate where the defendant had "little understanding of the gravity
of the crime at issue on appeal." 295 Kan. at 427. Nall did not only appear to not
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understand the gravity of his crime, he was apparently confused that his behavior was
even criminal.

Despite the fact that there is no evidence that C.B. was anything but a willing
sexual partner to Nall, the Kansas Legislature has determined that all crimes that involve
sexual relations with a minor child are, by their nature, violent. See Mossman, 294 Kan.
at 910. Because of the "'particularly heinous'" nature of sex crimes which involve
children, there is a "penological interest in punishing" those who commit such crimes.
Mossman, 294 Kan. at 909. Our analysis here weighs in favor of a lifetime postrelease
sentence.

The comparative length of the punishment to other offenses

Nall notes in his appellate brief that there are several offenses in Kansas that have
a higher severity level but a shorter total sentence because the term of postrelease
supervision is shorter. Nall urges this court to consider not just the term of incarceration
but the total length of the punishment when considering whether his sentence is
disproportionately lengthy.

The Kansas Supreme Court recently noted that the proportionality of a sentence
cannot be judged by comparing the lifetime postrelease period to that imposed for other
crimes. Funk, 301 Kan. at 941. The ruling in Funk continues the analysis from Mossman,
where the Kansas Supreme Court held that a lifetime postrelease sentence is "not grossly
disproportionate" to other offenses, specifically second-degree murder, in light of the
penological purposes of the punishment, the nature of the crime, and the other issues that
are addressed by consideration of the first Freeman factor. Mossman, 294 Kan. at 917.
This analysis is especially applicable in this case, where Nall has already served his entire
period of confinement and is in the community and on probation.

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The Kansas Supreme Court has routinely rejected this proportionality argument.
This court is duty bound to follow Kansas Supreme Court precedent, absent some
indication that the court is departing from a previous position. State v. Ottinger, 46 Kan.
App. 2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). Given the
Supreme Court's recent affirmance of this analysis in Funk, we must reject Nall's
argument concerning proportionality.

Comparison of the penalty to punishments in other jurisdictions

Nall claims in his appellate brief that there is a "national consensus against
mandatory imposition" of a lifetime postrelease sentence. Nall believes that only five
states impose such a punishment for the crime of indecent liberties. Since his sentence is
so lengthy as to be "out-of-step with national norms," Nall contends that his lifetime
postrelease sentence should be reversed.

Once again, our decision is controlled by the Kansas Supreme Court's decision in
Mossman. In that case, the court decided that even if Kansas' lifetime postrelease
sentence is "more severe than most other jurisdictions," it is not cruel or unusual. 294
Kan. at 920. This is true, the court determined, because "legitimate penological goals" of
"retribution, deterrence, incapacitation, and rehabilitation" are furthered by lifetime
postrelease supervision. 294 Kan. at 920-21. This decision was recently reaffirmed by the
court in Funk. See 301 Kan. at 942-43. We must follow the Kansas Supreme Court's prior
rulings on this issue. See Ottinger, 46 Kan. App. 2d at 655.

Analysis of all three Freeman factors compels us to conclude that the lifetime
postrelease sentence that was imposed by the district court passes muster under the
Kansas and United States Constitutions. This is especially true for any application of the
second and third Freeman factors, where the outcome is predetermined by application of
Kansas Supreme Court precedent.
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Eighth Amendment analysis

Finally, we must determine whether Nall's sentence is appropriate under the
Eighth Amendment to the United States Constitution. Nall preserved this issue by
referencing the Eighth Amendment in his motion attacking his lifetime postrelease
sentence.

Nall acknowledges that the proportionality analysis is quite similar to the one
required by Freeman. He maintains that his sentence was disproportionate to the actual
crime charged.

Although they are quite similar, the analytical framework for an Eighth
Amendment challenge is built around the United States Supreme Court's decision in
Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). See
Mossman, 294 Kan. at 921. Nall mentions Graham in his appellate brief but does not
conduct the case-specific proportionality analysis that Graham compels. Because of this,
we would normally determine that Nall's failure to make this specific argument
constitutes abandonment of the issue. See State v. Boleyn, 297 Kan. 610, 633, 303 P.3d
680 (2013).

The Graham analysis was applied by the Mossman court, when it found that a
review of relevant caselaw indicates that the United States Supreme Court has allowed
"considerable latitude to a legislature's policy decision regarding the severity of a
sentence." Mossman, 294 Kan. at 923. In addition, even under the Eighth Amendment,
the "penological objectives for lifetime postrelease supervision," particularly "deterrence,
incapacitation, and rehabilitation," apply even to a first-time offender. 294 Kan. at 930.

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After reviewing all of Nall's arguments, we are convinced that the lifetime
postrelease period in this case passes constitutional scrutiny, both under the Kansas
Constitution and the Eighth Amendment to the United States Constitution.

Affirmed.

* * *

ATCHESON, J., concurring: I concur in the narrow holding finding the imposition
of lifetime postrelease supervision on Defendant Travis Nall to be permissible
punishment under both the Kansas Constitution and the United States Constitution.