State v. Pjesky

1

NOT DESIGNATED FOR PUBLICATION

No. 119,256

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BRYCE ANTHONY PJESKY,
Appellant.

MEMORANDUM OPINION


Appeal from Morris District Court; MICHAEL F. POWERS, judge. Opinion filed May 3, 2019.
Affirmed.

Pamela S. Sullivan, of Wyatt and Sullivan, LLC, of Salina, for appellant.

Laura E. Allen, county attorney, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., PIERRON AND MALONE, JJ.

PER CURIAM: Bryce Anthony Pjesky pleaded guilty to two counts of aggravated
indecent liberties with a child. The district court sentenced him to a controlling term of
165 months' imprisonment and lifetime postrelease supervision. On appeal, Pjesky argues
that lifetime postrelease supervision for sex offenders under K.S.A. 2011 Supp. 22-3717
violates the Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution. Because Pjesky fails to meet his burden to prove that statute
unconstitutional, we affirm.
2


FACTS

In January 2013, Pjesky pleaded guilty to two counts of aggravated indecent
liberties with a child under K.S.A. 2011 Supp. 21-5506(b)(3)(A) and (c)(3). Because
Pjesky was over 18 years old and his victim was under 14 years old, his crime was an off-
grid felony, and he was subject to sentencing under K.S.A. 2011 Supp. 21-6627, also
known as Jessica's Law. That statute imposes a mandatory sentence of life imprisonment
without the possibility of parole for 25 years. K.S.A. 2011 Supp. 21-6627(a)(1). But the
State and Pjesky recommended a durational departure to the sentencing grid as part of the
plea agreement. The State suggested the court should treat each offense as a severity level
1 person felony. With Pjesky's criminal history of I, he would face a maximum sentence
of 165 months' imprisonment for each count. K.S.A. 2011 Supp. 21-6804. The district
court departed to the grid and sentenced Pjesky to a controlling term of 165 months'
imprisonment and lifetime postrelease supervision. Pjesky appeals.

ANALYSIS

Does Lifetime Postrelease Supervision Violate the Equal Protection Clause?

Pjesky argues that lifetime postrelease supervision for sex offenders violates the
Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
Pjesky acknowledges he did not raise this issue before the district court. Generally, a
party may not raise a constitutional claim for the first time on appeal. State v. Daniel, 307
Kan. 428, 430, 410 P.3d 877 (2018). But this general rule has several exceptions,
including: (1) The newly asserted claim involves only a question of law arising on
proved or admitted facts and is finally determinative of the case; (2) the claim's
consideration is necessary to serve the ends of justice or to prevent the denial of
fundamental rights; and (3) the district court's judgment may be upheld on appeal despite
3

relying on the wrong ground or reason for its decision. State v. Phillips, 299 Kan. 479,
493, 325 P.3d 1095 (2014).

Pjesky argues we should review his claim because it is only a question of law
arising from admitted facts and is finally determinative of the case. He also asserts
consideration of his claim is necessary to serve the ends of justice and prevent the denial
of fundamental rights. Kansas courts have reviewed equal protection challenges for the
first time on appeal because they involve only a question of law arising on proven or
admitted facts. See, e.g., State v. Denney, 278 Kan. 643, 650-51, 101 P.3d 1257 (2004).
The State does not argue we should not review this issue. Thus, we may address this
issue.

Standard of Review and Relevant Law

A statute's constitutionality is a question of law subject to unlimited review. We
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 any
reasonable construction would maintain the Legislature's apparent intent. State v.
Petersen-Beard, 304 Kan. 192, 194, 377 P.3d 1127 (2016).

The Equal Protection Clause requires states to treat similarly situated individuals
similarly. Courts use a three-step process when reviewing equal protection challenges.
First, courts consider whether the statute creates a classification resulting in different
treatment of similarly situated individuals. If the statute treats indistinguishable
individuals differently, courts then determine what level of scrutiny applies. This is done
by examining the classification or right at issue. Finally, courts apply the proper level of
scrutiny to the statute. State v. Cheeks, 298 Kan. 1, 5, 310 P.3d 346 (2013).

4

Similarly Situated Individuals

The first step of the equal protection analysis requires us to determine whether the
challenged statute creates a classification resulting in different treatment of similarly
situated individuals. Pjesky bears the burden to prove he is similarly situated to members
of a class receiving different treatment. See State v. Salas, 289 Kan. 245, 249, 210 P.3d
635 (2009). "[T]he parameters of a court's consideration of whether individuals are
similarly situated is set by the distinctions argued by the complaining party." 289 Kan. at
249.

Pjesky challenges the treatment of sex offenders under K.S.A. 2011 Supp. 22-
3717, governing parole and postrelease supervision. That statute provides varying terms
of mandatory postrelease supervision based on the nature and severity level of the
offender's crime of conviction. K.S.A. 2011 Supp. 22-3717(d)(1). For many crimes, these
terms vary in length from 12 to 36 months. K.S.A. 2011 Supp. 22-3717(d)(1)(A)-(D).

The terms of postrelease supervision mandated by subsections (d)(1)(A) through
(d)(1)(D) have two exceptions. First, they do not apply to offenders convicted of off-grid
crimes. Second, and most relevant to Pjesky's situation, they do not apply to offenders
convicted of sexually violent crimes. K.S.A. 2011 Supp. 22-3717(d)(1). Instead,
subsection (d)(1)(G) provides a term of lifetime postrelease supervision for those
convicted of sexually violent crimes on or after July 1, 2006. K.S.A. 2011 Supp. 22-
3717(d)(1)(G). Pjesky's crime of conviction, aggravated indecent liberties with a child, is
a sexually violent crime under the statute. K.S.A. 2011 Supp. 22-3717(d)(2)(C).

But K.S.A. 2011 Supp. 22-3717(d)(1)(G) does not apply to all offenders convicted
of sexually violent crimes. Offenders sentenced under Jessica's Law are not subject to
lifetime postrelease supervision. Instead, they must serve lifetime parole under K.S.A.
2011 Supp. 22-3717(u) if released from prison.
5



In trying to show that he is similarly situated to members of a class receiving
different treatment, Pjesky focuses on the maximum sentence he faced for his conviction.
As noted, Pjesky pleaded guilty to two counts of the off-grid version of aggravated
indecent liberties with a child. As a result, the district court could have sentenced him
under Jessica's Law. K.S.A. 2011 Supp. 21-6627(a)(1)(C). Jessica's Law mandates a
sentence of life imprisonment without the possibility of parole for 25 years.

Pjesky notes that the maximum sentence under Jessica's Law is the same as the
maximum sentence for other off-grid crimes, such as first-degree murder. Those crimes
also carry a maximum sentence of lifetime imprisonment. K.S.A. 2011 Supp. 21-6806.
But offenders convicted of those crimes do not serve lifetime postrelease supervision.
Instead, they are eligible for parole after serving a certain number of years in prison.
K.S.A. 2011 Supp. 22-3717(b)(1), (b)(2), and (d)(1). Pjesky thus reasons that he, as a sex
offender, is being treated differently from an indistinguishable group.

Pjesky is unclear about what classifications he believes K.S.A. 2011 Supp. 22-
3717 has created. He complains in his brief that sex offenders are treated unfairly under
that statute because they must be sentenced to lifetime postrelease supervision. In his
argument, he compares offenders sentenced to life imprisonment under Jessica's Law for
sexually violent off-grid crimes with offenders sentenced to life imprisonment for other
off-grid crimes. But offenders sentenced under Jessica's Law do not serve lifetime
postrelease supervision. Instead, if released from prison, they serve lifetime parole. See
K.S.A. 2011 Supp. 22-3717(u). There is no class of offenders who can be sentenced to
life imprisonment under Jessica's Law and lifetime postrelease supervision.

Pjesky has also failed to show that the maximum sentence he faced is the relevant
trait for determining if he is similarly situated to other individuals under K.S.A. 2011
6

Supp. 22-3717. In support of his argument, Pjesky relies on Cheeks. The Cheeks court
held that K.S.A. 21-2512, which permitted only those convicted of first-degree murder or
rape the opportunity to petition for postconviction DNA testing, violated the Equal
Protection Clause. 298 Kan. at 11. The defendant in Cheeks was convicted of second-
degree murder before the Kansas Sentencing Guidelines Act (KSGA) and sentenced to an
indeterminate term of imprisonment of 15 years to life. He argued his maximum pre-
KSGA life sentence made him similarly situated to someone sentenced pre-KSGA to life
imprisonment for first-degree murder. The Cheeks court agreed. 298 Kan. at 6-7.

Pjesky also cites State v. Kelsey, 51 Kan. App. 2d 819, 359 P.3d 414 (2015). As in
Cheeks, the defendant in Kelsey also challenged K.S.A. 21-2512 under the Equal
Protection Clause. He was convicted of aggravated indecent liberties with a child and
sentenced under Jessica's Law. He argued his sentence made him similarly situated to
someone convicted of rape or aggravated criminal sodomy and sentenced under Jessica's
Law. A panel of this court agreed, relying on Cheeks. Kelsey, 51 Kan. App. 2d at 825,
827.

But Cheeks is not dispositive here for two reasons. First, after the parties filed their
briefs in Pjesky's case, the Kansas Supreme Court overruled Cheeks, holding that the
sentence imposed does not determine "whether an offender is similarly situated to a
person to whom postconviction DNA testing is statutorily available." State v. LaPointe,
309 Kan. 299, 318, 434 P.3d 850 (2019). While LaPointe did not explicitly overrule
Kelsey, Kelsey appears to no longer be good law.

Second, even if Cheeks had not been overruled, it is not clear that it would support
Pjesky's argument. As noted in Cheeks, the proper focus of a similarly situated inquiry is
the purpose of the law. 298 Kan. at 6. As the Cheeks court explained, "K.S.A. 21-2512's
purpose is not to punish crimes committed with premeditation. Rather, its purpose is to
provide an opportunity for exoneration to innocent individuals convicted of severe
7

crimes." 298 Kan. at 6. The Cheeks court held "the relevant trait for our similarly situated
analysis is the sentence imposed by the district court and not the elements of the crimes."
298 Kan. at 6-7.

In contrast, Pjesky has not identified the purpose of K.S.A. 2011 Supp. 22-3717.
Nor has he explained why the maximum sentence for his crime of conviction would be
the relevant trait for determining whether he is similarly situated to other individuals
under that statute. In fact, the State essentially argues that the nature of his crime is the
relevant trait, and thus he is not similarly situated to offenders who committed crimes that
are not sexually violent. See LaPointe, 309 Kan. at 319 (holding that defendant convicted
of aggravated robbery and aggravated assault was not similarly situated to offenders
convicted of first-degree murder and rape based on elements of crimes for purposes of
postconviction DNA testing statute); Merryfield v. State, 44 Kan. App. 2d 817, 823-24,
241 P.3d 573 (2010) (holding that sexually violent predators are not similarly situated to
other civilly committed persons with respect to risks and treatment needs).

Pjesky has failed to show he is similarly situated to a group receiving different
treatment under K.S.A. 2011 Supp. 22-3717. Because we are limited by the distinction he
has drawn, Pjesky does not meet the threshold requirement for an equal protection
violation. As a result, his claim fails.

Rational Basis

But assuming, without deciding, that sex offenders subject to lifetime postrelease
supervision are similarly situated to other offenders subject to some other term of
postrelease supervision, the different treatment of these groups likely passes
constitutional muster. When analyzing an equal protection claim, courts use three levels
of scrutiny: strict scrutiny, intermediate scrutiny, and the rational basis test. Courts
generally apply the rational basis test unless the statute's classification targets a suspect
8

class or burdens a fundamental right. State v. Limon, 280 Kan. 275, 283, 122 P.3d 22
(2005).

Pjesky argues only that the statute's classification does not pass the rational basis
test. He has not argued that a higher level of scrutiny should apply. Thus he has
abandoned any argument that K.S.A. 2011 Supp. 22-3717's classification must pass
intermediate or strict scrutiny. State v. Arnett, 307 Kan. 648, 650, 413 P.3d 787 (2018)
("'An issue not briefed by an appellate is deemed waived and abandoned.'").

The rational basis test asks (1) whether a statute promotes legitimate goals; and (2)
whether a rational relationship exists between those goals and the means chosen to
achieve them. Limon, 280 Kan. at 288. To answer these questions, courts need not
determine the Legislature's actual reason for the challenged classification. Instead, courts
need only consider whether the Legislature could have had a legitimate reason for
creating the classification. Under this test, Pjesky must negate "'every conceivable
[reasonable] basis which might support'" the differing treatment. Cheeks, 298 Kan. at 8.

Kansas courts do not appear to have ever addressed whether lifetime postrelease
supervision for sex offenders violates equal protection. But they have found lifetime
postrelease supervision for sex offenders is not cruel and unusual punishment under the
Eighth Amendment to the United State Constitution and § 9 of the Kansas Constitution
Bill of Rights. See, e.g., State v. Cameron, 294 Kan. 884, Syl. ¶¶ 1, 2, 3, 281 P.3d 143
(2012); State v. Mossman, 294 Kan. 901, Syl. ¶¶ 5, 7, 9, 281 P.3d 153 (2012). In these
cases, they have discussed the justifications for the disparate treatment of sex offenders in
postrelease supervision.

As noted in Mossman, the United States Supreme Court has observed that sex
offenders pose a serious threat to society, and they are more likely than other criminals to
reoffend after release from prison. 294 Kan. at 924 (citing McKune v. Lile, 536 U.S. 24,
9

32-33, 122 S. Ct. 2017, 153 L. Ed. 2d 47 [2002]). So the State has a legitimate goal of
protecting the public from sex offenders. Lifetime postrelease supervision advances this
goal in several ways. First, lifetime postrelease supervision "act[s] as a deterrent to future
crime, a goal that is particularly legitimate given sex offenders' higher rate of recidivism."
Mossman, 294 Kan. at 911 (citing Smith v. Doe, 538 U.S. 84, 93, 123 S. Ct. 1140, 155 L.
Ed. 2d 164 [2003]). Second, postrelease supervision can aid in rehabilitating sex
offenders. Mossman, 294 Kan. at 911 (citing United States v. Williams, 636 F.3d 1229,
1234 [9th Cir. 2011]). Finally, lifetime postrelease supervision helps incapacitate sex
offenders because they remain under the oversight of the State. Mossman, 294 Kan. at
911 (citing Williams, 636 F.3d at 1234).

Pjesky suggests the imposition of lifetime postrelease supervision on sex offenders
"is born of animosity toward the class of persons affected." But he does not rebut any of
the possible bases that might support the differing treatment. He has failed to carry his
burden on this point.

Affirmed.