State v. Rodriguez

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NOT DESIGNATED FOR PUBLICATION

No. 114,991

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ANTHONY MICHAEL RODRIGUEZ,
Appellant.


MEMORANDUM OPINION

Appeal from Butler District Court; CHARLES M. HART, judge. Opinion filed December 2, 2016.
Affirmed.

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

Cheryl M. Pierce, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

Before GREEN, P.J., MCANANY and STANDRIDGE, JJ.

Per Curiam: Anthony Michael Rodriguez appeals the district court's decision to
grant the State's motion to correct an illegal sentence and increase his postrelease
supervision from a term of 24 months to lifetime. Rodriguez argues that once the court
revoked his probation and imposed an underlying sentence, the court lacked jurisdiction
to later increase it. Alternatively, Rodriguez argues that lifetime postrelease supervision
constitutes cruel and unusual punishment in violation of his constitutional rights. But the
district court had jurisdiction to modify the term of postrelease supervision imposed
because it was an illegal sentence. As to Rodriguez' alternative argument, we find
substantial competent evidence supports the district court's conclusion that lifetime
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postrelease supervision in this case is constitutional under the Eighth Amendment to the
United States Constitution and § 9 of the Kansas Constitution Bill of Rights. For these
reasons, we affirm the district court's judgment.

FACTS

On January 9, 2009, Rodriguez pled guilty to one count of indecent liberties with a
child, a severity level 5 person felony. At sentencing, the district court granted Rodriguez'
motion for departure and sentenced him to 36 months' probation with an underlying
prison term of 120 months and 24 months' postrelease supervision. The district court
judge subsequently revoked Rodriguez' probation in September 2010 and ordered that he
serve his original prison sentence, stating, "I do order you to serve the balance of your
sentence of 120 months in prison." This ruling also maintained the 24-month postrelease
supervision portion of the sentence.

The State later discovered that the postrelease supervision period Rodriguez had
been ordered to serve was incorrect under K.S.A. 22-3717(d)(1)(G), which provides that
offenders convicted of a sexually violent crime are subject to mandatory lifetime
postrelease supervision. Because the crime of indecent liberties with a child is a "sexually
violent crime" under K.S.A. 22-3717(d)(2)(B), that provision applied. On June 4, 2015,
the State filed a motion to correct an illegal sentence asking the district court to correct
Rodriguez' sentence by issuing an order of lifetime postrelease supervision.

Rodriguez filed a brief objecting to lifetime postrelease supervision, arguing that
such a punishment is cruel and unusual in violation of his rights under the Eighth
Amendment and § 9 of the Kansas Constitution Bill of Rights. The State responded,
arguing that the sentence was not unconstitutional. The district court held that "based on
the facts of this case, that the standard of lifetime postrelease supervision is not
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unconstitutional." The court therefore granted the State's motion to correct an illegal
sentence and resentenced Rodriguez to lifetime postrelease supervision.

ANALYSIS

Jurisdictional claim

On appeal, Rodriguez claims the district court did not have jurisdiction to
resentence him to lifetime postrelease supervision because the sentence of 24 months'
postrelease supervision was legal when it was imposed by the district court at the 2010
revocation hearing and the court does not have jurisdiction to modify a legal sentence.
The State disagrees, arguing the 24-month term was illegal because K.S.A. 22-
3717(d)(1)(G) mandates lifetime postrelease supervision for any offender convicted of a
sexually violent offense, which includes indecent liberties with a child under K.S.A. 22-
3717(d)(2)(B). As such, the State maintains the district court properly corrected the
illegal sentence to lifetime postrelease supervision.

Whether a sentence is illegal is a question of law over which this court has
unlimited review. State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013). If the 24-
month postrelease sentence was legally imposed, the district court would not have
jurisdiction to increase the legally imposed sentence. See State v. Ballard, 289 Kan. 1000,
1010, 218 P.3d 432 (2009) ("[C]ourts generally do not have jurisdiction to increase
legally imposed sentences."). However, if Rodriguez' sentence was illegal, it may be
corrected "at any time" under K.S.A. 22-3504(1). An illegal sentence includes one that
does not conform to the applicable statutory provision in either the character or the term
of authorized punishment. State v. Lawson, 296 Kan. 1084, 1099, 297 P.3d 1164 (2013).

Notably, Rodriguez readily acknowledges he was convicted of a "sexually violent
crime" under K.S.A. 22-3717(d)(2)(B) and subject to mandatory lifetime postrelease
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supervision pursuant to K.S.A. 22-3717(d)(1)(G). In turn then, Rodriguez necessarily
acknowledges that—when the district court granted his motion for departure and
sentenced him to probation in 2009—his underlying sentence of 24 months' postrelease
supervision was illegal in that it did not conform to the applicable statutory provision in
terms of the authorized punishment. But Rodriguez maintains this fact is not fatal to his
claim that the district court did not have jurisdiction to modify his sentence in 2015 when
the State filed its motion. Rodriguez argues that when his probation was revoked in 2010,
the district court imposed a new, legal sentence pursuant to K.S.A. 22-3716(b), which
permits a court to "require the defendant to serve the sentence imposed, or any lesser
sentence." Specifically, Rodriguez claims the court imposed the 24-month postrelease
sentence as a "lesser sentence" than the lifetime postrelease sentence mandated by K.S.A.
22-3717(d)(1)(G); thus, the 24-month postrelease sentence is a legal sentence that the
district court could not thereafter modify.

Kansas courts have repeatedly rejected Rodriguez' interpretation of the interplay
between K.S.A. 22-3717(d)(1)(G) and K.S.A. 22-3716(b) where, like here, the court
imposes the original sentence, not a new or modified sentence. See, e.g., State v. Reed, 50
Kan. App. 2d 1133, 1136, 336 P.3d 912 (2014), rev. denied 302 Kan. 1019 (2015); State
v. Lobmeyer, No. 110,209, 2014 WL 3907097, at *3 (Kan. App. 2014) (unpublished
opinion) ("[T]he district court ordered Lobmeyer to serve his original illegal sentence, not
a lesser legal one. Thus, we do not need to examine the interplay of the 'any lesser
sentence' provision of K.S.A. 2010 Supp. 22-3716[b] and the mandatory lifetime
postrelease supervision for sexually violent offenses provision of K.S.A. 2010 Supp. 22-
3717[d][1][G]."), rev. denied 302 Kan. 1017 (2015); see also Ballard, 289 Kan. at 1012
(sentence was based on wrong statute and was therefore illegal, district court had
jurisdiction to modify it after pronouncement); State v. Baber, 44 Kan. App. 2d 748, 754,
240 P.3d 980 (2010) ("Where a defendant is subject to K.S.A. 22-3717[d][1][G], he or
she is to be sentenced under that subsection. Any other sentence imposed is illegal.").

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A panel of this court addressed the same issue in Reed. In that case, Reed pled
guilty to indecent solicitation of a child, for which the court sentenced her to 24 months'
probation with an underlying 18-month prison sentence and 24 months' postrelease
supervision. The court subsequently revoked Reed's probation and sentenced her to serve
her original sentence. The State moved to correct an illegal sentence, and the district
court granted the motion, holding that Reed was statutorily required to serve a term of
lifetime postrelease supervision. On appeal, Reed made the same argument that
Rodriguez makes here: her sentence upon probation revocation was a legal "lesser
sentence" under K.S.A. 2011 Supp. 22-3716(b) and, therefore, the district court had no
jurisdiction to resentence her to lifetime postrelease supervision. The Reed court rejected
her interpretation, holding:

"[W]hen a defendant has been convicted of one of the statutorily defined sexually violent
offenses, the district court does not have discretion to ignore the lifetime postrelease
supervision requirement of K.S.A. 2011 Supp. 22-3717(d)(1)(G). State v. Ballard, 289
Kan. 1000, 1012, 218 P.3d 432 (2009); State v. Baber, 44 Kan. App. 2d 748, 753-54, 240
P.3d 980 (2010), rev. denied 296 Kan. 1131 (2013). A district court's failure to comply
with the statute results in an illegal sentence. 44 Kan. App. 2d at 754. . . .
"Nevertheless, Reed contends that upon revocation of her probation the district
court applied K.S.A. 2011 Supp. 22-3716(b) to impose a lesser sentence, which in this
case was a shorter postrelease supervision term. Thus, she contends, the original illegal
sentence became legal upon the revocation of her probation because the district court had
the discretion to sentence her to a lesser period of postrelease supervision at that point.
"Unfortunately for Reed, this is not what happened. At the probation revocation
hearing, the district court revoked Reed's intensive supervision and ordered her 'to serve
the balance of the sentence that was imposed upon you at the time of sentencing.' . . .
"Based on the record, the district court ordered Reed to serve her original illegal
sentence, not a lesser legal one. Thus, we do not need to examine the interplay of the 'any
lesser sentence' provision of K.S.A. 2011 Supp. 22-3716(b) and the mandatory lifetime
postrelease supervision for sexually violent offenses provision of K.S.A. 2011 Supp. 22-
3717(d)(1)(G)." Reed, 50 Kan. App. 2d at 1135-36.

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Like in Reed, the district court judge here ordered Rodriguez to serve his original
term at the probation revocation hearing, stating, "I do order you to serve the balance of
your sentence of 120 months in prison." The court thus ordered Rodriguez to serve his
original illegal sentence, not a lesser sentence. That sentence was also illegal because it
did not comply with K.S.A. 22-3717(d)(1)(G), so the district court had jurisdiction to
correct the illegal sentence under K.S.A. 22-3504(1). The district court did not err.

Rodriguez argues that "it is also possible to interpret the phrase 'any lesser
sentence' to mean a sentence that is less than is required by statute." This issue requires
statutory interpretation, which is a question of law over which this court has unlimited
review. State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008). K.S.A. 2015 Supp. 22-
3716(b)(3)(B)(iii) permits a district court to: "revoke the probation . . . and require the
defendant to serve the sentence imposed, or any lesser sentence, and, if imposition of
sentence was suspended, may impose any sentence which might originally have been
imposed." (Emphasis added.) The phrase "any lesser sentence" must be read in context to
determine what the sentence would be "lesser" than. The plain language compels the
conclusion that it is lesser than "the sentence imposed," as that is the phrase directly
preceding. See Ballard, 289 Kan. at 1006 (when statutory language is plain and
ambiguous, courts may not read into statute language not found there). The only
reference in that statute to the sentence that might originally have been imposed is in the
context of a suspension of a sentence. Rodriguez' interpretation of K.S.A. 2015 Supp. 22-
3716(b) lacks merit and has previously been foreclosed by this court.

Further, Rodriguez argues that Lobmeyer is factually distinguishable because in
that case, the district court specifically stated that it was not reducing the postrelease
supervision period, unlike the district court here. This court finds that to be a distinction
without a difference, as the court in fact did not reduce the postrelease supervision period,
despite its lack of an announcement.

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Finally, Rodriguez argues that this case is similar to State v. McKnight, 292 Kan.
776, 257 P.3d 339 (2011). McKnight pled no contest to a drug charge and received a
legal sentence that was suspended in favor of probation. The court subsequently revoked
McKnight's probation and issued a modified sentence that omitted postrelease
supervision based on a mistake of law. The State later moved the court to correct what it
argued was an illegal sentence. Our Supreme Court held that the modified sentence was
legally imposed, even though based on a mistake of law and, therefore, the district court
lacked jurisdiction to subsequently modify the sentence. 292 Kan. at 783.

McKnight is distinguishable from Rodriguez' case for two reasons: (1) the original
sentence in that case was legally imposed and (2) the modified sentence was both legal
and a lesser sentence than McKnight's original sentence. Here, Rodriguez' original
sentence was illegal because it did not comport with the punishment mandated by K.S.A.
22-3717(d)(1)(G) and, therefore, the subsequent imposition of that same sentence was
also illegal. Because the district court may correct an illegal sentence at any time under
K.S.A. 22-3504(1), the district court did not err in doing so in this case.

Constitutional claim

Next, Rodriguez argues that imposition of lifetime postrelease supervision
constitutes cruel and unusual punishment in violation of the Eighth Amendment and § 9
of the Kansas Constitution Bill of Rights. The State contends that the punishment is not
unconstitutional. The constitutionality of a sentencing statute is a question of law subject
to unlimited appellate review. State v. Hilt, 299 Kan. 176, 202, 322 P.3d 367 (2014).

"A statute is presumed constitutional and all doubts must be resolved in favor of
its validity." Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 629, 176 P.3d 938
(2008). Due to the separation of powers principle, "if there is any reasonable way to
construe a statute as constitutional, courts have the duty to do so by resolving all doubts
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in favor of constitutionality." State v. Mossman, 294 Kan. 901, 906-07, 281 P.3d 153
(2012) (citing State v. Laturner, 289 Kan. 727, 735, 218 P.3d 23 [2009]).

When a defendant challenges his or her sentence as cruel and unusual, appellate
courts use a bifurcated standard of review: "All of the evidence is reviewed, but not
reweighed, to determine whether it is sufficient to support the district court's factual
findings, but the legal conclusions that the district court draws from those facts are
reviewed de novo." State v. Ross, 295 Kan. 424, 425-26, 284 P.3d 309 (2012).

A. Section 9 of the Kansas Constitution Bill of Rights

Kansas courts consider three factors to determine whether a sentence is cruel or
unusual in violation of § 9 of the Kansas Constitution Bill of Rights. See State v.
Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978). The 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.

No single factor is controlling. Appellate courts consider the factors collectively, but one
factor may "weigh so heavily that it directs the final conclusion." State v. Ortega-
Cadelan, 287 Kan. 157, 161, 194 P.3d 1195 (2008).

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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. Ross, 295 Kan. at 426. The considerations under this factor
are "inherently factual, requiring examination of the facts of the crime and the particular
characteristics of the defendant." Ortega-Cadelan, 287 Kan. at 161. In addition, "[t]his
analysis may consider the offender's mental state and motive in committing the crime, the
actual harm caused to the victim or to society by the offender's conduct, any prior
criminal history of the offender, and the offender's propensity for violence." Ross, 295
Kan. at 429.

Rodriguez included the following facts in his brief: (1) his criminal history score
was A because of several misdemeanors—he had no felonies or sex convictions at the
time of sentencing; (2) he originally was released to the community on probation; (3) the
State did not present evidence that Rodriguez used a weapon; and (4) Rodriguez did not
put the victim in a position where she could have died. Only the first two facts were
included in Rodriguez' objection to lifetime postrelease supervision before the district
court.

Here, the district court made no findings regarding these facts to aid this court in
its review of the Freeman factors. The district court merely stated that "based on the facts
of this case, that the standard of lifetime postrelease supervision is not unconstitutional."
The court did not address the Freeman factors, any of the specifics of the incident, or any
of the potentially mitigating arguments Rodriguez raised in his motion or at the hearing.
Appellate courts do not make factual findings but are limited to reviewing those made by
district courts. State v. Berriozabal, 291 Kan. 568, 591, 243 P.3d 352 (2010). In the
absence of any factual findings, this court does not have the necessary factual basis upon
which to analyze whether Rodriguez' sentence is unconstitutional under Freeman. See
State v. Seward, 289 Kan. 715, 720-21, 217 P.3d 443 (2009).

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Supreme Court Rule 165 (2015 Kan. Ct. R. Annot. 257) requires the district court
to make adequate findings of fact and conclusions of law on matters submitted to it
without a jury. In Seward, our Supreme Court held that the responsibility for a lack of
adequate findings and conclusions regarding the Freeman factors is shared between the
district judge, the defendant, and the defense counsel. Seward, 289 Kan. at 720. While the
claim that lifetime postrelease supervision constituted cruel or unusual punishment was
relatively new at the time of Seward, the court stated:

"In the future, a defendant who wishes to appeal on the basis of a constitutional challenge
to a sentencing statute must ensure the findings and conclusions by the district judge are
sufficient to support appellate argument, by filing a motion invoking the judge's duty
under Rule 165, if necessary." 289 Kan. at 721.

Appellate courts have followed Seward's warning and declined to review
constitutional challenges to sentencing statutes when the litigant failed to ensure the
district court made adequate findings and conclusions on the Freeman factors to ensure a
sufficient record for review. See, e.g., State v. Reed, 300 Kan. 494, 513, 332 P.3d 172
(2014) ("[T]his court has consistently declined to address a defendant's appellate
argument regarding cruel and/or unusual punishment when the defendant has failed to
develop the record below."), cert. denied 135 S. Ct. 1566 (2015); Reed, 50 Kan. App. 2d
at 1138-39 (defendant's failure to ensure the district court made adequate findings and
conclusions on Freeman challenge foreclosed this court's review); State v. Beck, No.
109,657, 2014 WL 2871322, at *2-3 (Kan. App. 2014) (unpublished opinion) (where "the
district court made no factual findings in relation to Beck's specific case," appellate court
held "it is impossible for this court to review Beck's case-specific challenges to the
constitutionality of lifetime postrelease supervision, and these claims on appeal must be
dismissed"), rev. denied 302 Kan. 1012 (2015).

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Rodriguez did not object to the inadequacy of the district court's findings or
attempt to preserve an adequate record for review. Under Seward, we decline to review
Rodriguez' case-specific claims that his sentence of lifetime postrelease supervision is
unconstitutional and therefore affirm the district court regarding Rodriguez' constitutional
claim under § 9 of the Kansas Constitution Bill of Rights.

B. Eighth Amendment to the United States Constitution

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

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

Case-specific challenge

In analyzing a case-specific Eighth Amendment challenge, the threshold inquiry
requires the court to compare the gravity of the offense with the severity of the sentence
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to determine if there is a gross disproportionality. In this analysis, courts may consider
the defendant's mental state and motive in committing the crime, the actual harm caused
to the victim or to society by the defendant's conduct, the defendant's prior criminal
history, and the defendant's propensity for violence. Ross, 295 Kan. at 428-29. Kansas
courts have noted that the case-specific analysis of the Freeman factors applies to this
initial determination. See, e.g., Mossman, 294 Kan. at 917.

Rodriguez relies on his argument regarding the Freeman factors as his case-
specific challenge under the Eighth Amendment. As was discussed above, the district
court made no factual findings or conclusions of law regarding the Freeman factors and,
therefore, this court cannot review the district court's findings or conclusions regarding
gross disproportionality. Because Rodriguez does not meet the threshold inquiry, his
case-specific challenge fails.

Categorical challenge

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

The United States Supreme Court has identified three subcategories of categorical
constitutional challenges: (1) those considering the nature of the offense, (2) those
considering the characteristics of the offender, and (3) those that combine the first two
subcategories. See Graham, 560 U.S. at 60-61. Rodriguez argues under the first category
that the class of offenders at issue here are those who commit "a sex offense involving an
offender and a child, aged at least fourteen but less than sixteen years old, where the
offender engages in lewd fondling or touching of the child or the offender with the intent
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to arouse or satisfy the sexual desires of either or both the child or offender, as set forth in
K.S.A. 2007 Supp. [sic] 21-3503(a)(1)." However, our courts do not analyze the nature of
the offense so narrowly. See State v. Cameron, 294 Kan. 884, 897, 281 P.3d 143 (2012)
(no basis for considering class "that is any narrower than the crime of conviction—
aggravated indecent solicitation of a child"). This court should therefore define the nature
of the offense as indecent liberties with a child. Reed, 50 Kan. App. 2d at 1142 (defining
the class as indecent solicitation of a child without refining any further where district
court never determined specific facts related to the offense).

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

"The Court first considers 'objective indicia of society's standards, as expressed in
legislative enactments and state practice' to determine whether there is a national
consensus against the sentencing practice at issue. [Citation omitted.] Next, guided by
'the standards elaborated by controlling precedents and by the Court's own understanding
and interpretation of the Eighth Amendment's text, history, meaning, and purpose,'
[citation omitted], the Court must determine in the exercise of its own independent
judgment whether the punishment in question violates the Constitution. [Citation
omitted.]" 560 U.S. at 61.

First, Rodriguez argues that there is a national consensus against lifetime
postrelease supervision for indecent liberties with a child. He argues that only Oklahoma
and Kansas impose lifetime postrelease supervision without the possibility of release
from supervision for first-time offenders. He contends that, under Graham, the fact that
the practice is "exceedingly rare" indicates a national consensus against the practice. See
560 U.S. at 67. Rodriguez also argues that compared to other jurisdictions, Kansas'
imposition on lifetime postrelease supervision is harsh.

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In Mossman, our Supreme Court relied on Williams, which held that lifetime
supervised release was not cruel and unusual punishment for the crime of child
pornography. The Ninth Circuit in Williams held that "'objective indicia' suggest that
society is comfortable with lifetime sentences of supervised release for sex offenders, as
such sentences are common." 636 F.3d at 1233. Moreover, the Mossman court noted that
"several other states have adopted lifetime postrelease supervision for many, if not all,
sexually violent crimes." 294 Kan. at 930; see Cameron, 294 Kan. at 897 (same analysis).

In its analysis of the Freeman factors, the Mossman court surveyed state laws
regarding lifetime postrelease supervision for sex offenses. It reported:

"[I]t seems fair to say that less than half of states provide for lifetime postrelease
supervision of some or all sex offenders and, because several states have a mechanism for
termination of the postrelease supervision under certain conditions, only a handful of
states impose punishment as absolute as Kansas' requirement. Nevertheless, Kansas is not
alone in imposing mandatory lifetime postrelease supervision for crimes such as
[aggravated indecent liberties with a child], and we are not aware of any court that has
found lifetime postrelease supervision of a violent sex offender to be cruel and unusual
punishment." 294 Kan. at 920.

Rodriguez attempts to distinguish his case from Mossman and Cameron by
arguing that the nature of his offense is "much less harmful," by comparing the elements
of the crimes and noting that Cameron involved a victim younger than age 14 and
Mossman involved an offender who had sexual intercourse with the victim. But Kansas
courts have held that the analysis applies to the crime of indecent liberties with a child as
well. See, e.g., State v. Marion, 50 Kan. App. 2d 802, 816, 333 P.3d 194 (2014)
("Marion's sentence of lifetime postrelease supervision for his conviction of indecent
liberties with a child is not categorically disproportionate and, therefore, is not cruel and
unusual punishment under the Eighth Amendment to the United States Constitution.");
State v. Alvarado, No. 108,458, 2015 WL 1122927, at *12 (Kan. App.) (unpublished
15
opinion) ("Alvarado cannot show that the Kansas Supreme Court's rulings on this subject
do not apply to his crime of indecent liberties with a child. By applying the same analysis
and reaching the same conclusions in Mossman, Cameron, and Williams, cases involving
different sex crimes, the Kansas Supreme Court suggested it would reject a challenge to
the imposition of lifetime postrelease supervision regardless of the sex crime involved."),
rev. denied 302 Kan. 1012 (2015); see also Reed, 50 Kan. App. 2d at 1144 ("Because
Kansas considers indecent solicitation of a child to be a sexually violent offense, Reed's
crime of conviction falls squarely into this analysis."). The Kansas Supreme Court has
consistently held that there is no consensus against lifetime postrelease supervision for
violent sex offenses, and Rodriguez provides no reason for this court to hold otherwise
now.

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

Rodriguez argues that lifetime postrelease supervision for his crime does not serve
any of the penological goals addressed by Graham. He contends that the goal of
retribution is not served because lifetime postrelease supervision is not related to his
personal level of culpability. Specifically, Rodriguez notes that unlike other offenses for
which the constitutionality of the sentence has been upheld, indecent liberties with a child
does not require sexual penetration of the victim, nor does it involve a victim under the
age of 14 years. Second, Rodriguez argues that the sentence does not meet the goal of
deterrence because an offender's criminal history already serves to deter him or her from
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committing additional crimes. Third, he argues that incapacitation does not justify
lifetime postrelease supervision because by the time an offender is subject to postrelease
supervision, he or she has already served the prison term, and because it applies too
broadly to all sexual offenders without determining the risk that the offender will
reoffend. Finally, Rodriguez argues that the sentence does not meet the goal of
rehabilitation because postrelease supervision here continues for the offender's lifetime
regardless of how much he or she ages or improves his or her moral character.

Kansas courts have previously considered whether lifetime postrelease supervision
for sex offenders serves legitimate penological goals. In Mossman, our Supreme Court
again looked to Williams, which held that the goals of rehabilitation and incapacitation
"are central purposes of the criminal justice system, and they are particularly critical here
given the propensity of sex offenders to strike again." 636 F.3d at 1234. The court also
held that "[s]upervised release can further the end of rehabilitating sex offenders" and that
"supervised release helps incapacitate sex offenders by keeping them under the watchful
eye of probation officers who may be able to detect problems before they result in
irreparable harm to innocent children." 636 F.3d at 1234.

Mossman applied Williams' reasoning to lifetime postrelease supervision for the
crime of aggravated indecent liberties with a child. Mossman, 294 Kan. at 930. The same
reasoning applies to other sexual crimes against a child. See e.g., Reed, 50 Kan. App. 2d
at 1145 (lifetime postrelease supervision for indecent solicitation with a child "serves the
valid penological objectives of deterring such conduct and in incapacitating and
rehabilitating the offender").

This court must follow the guidance of our Supreme Court. Rodriguez' sentence is
not categorically disproportionate and, therefore, is not cruel and unusual punishment in
violation of the Eighth Amendment.

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C. Application of State v. Proctor

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

Rodriguez argues that, like in Proctor, the district court originally imposed only
probation, which sentence Proctor held is "difficult to meld with the harshest component
of lifetime postrelease supervision." 2013 WL 6726286, at *4. Rodriguez also argues that
the potential for life imprisonment comes not from the current conviction but for any
future conviction he may receive in the future. But at the time of Proctor, life
imprisonment upon the conviction of a subsequent felony was mandatory. See K.S.A.
2009 Supp. 75-5217(c). Since then, the statute has been revised: if an offender commits a
new felony on lifetime postrelease supervision, the prisoner review board has discretion
to decide the prison sentence. K.S.A. 2015 Supp. 75-5217. And in Mossman, our
Supreme Court rejected attempts to focus on the potential consequences of violating
lifetime postrelease supervision, finding that those consequences are distinct from the
question of disproportionality. 294 Kan. at 913 ("[A] comparison of proportionality
cannot be based solely on the length of postrelease supervision.").

The similarities between the cases end there. The Proctor court heavily relied on
the first Freeman factor, reviewing several factual findings made by the district court:
Proctor's young age, lack of criminal record, and lack of evidence the defendant was a
"serial sex offender with a trail of victims"; and expert testimony that he would benefit
from therapy and was not a likely future offender. 2013 WL 6726286, at *4-6. The
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district court focused specifically on Proctor's history as a victim of sexual abuse in
adolescence, which went untreated, and which distinguished Proctor's case from prior
cases where the offenders "plainly were not replicating conduct that had been directed
toward them." 2013 WL 6726286, at *5. Finally, the court specifically advised that the
ruling was limited to "the facts of [that] case at the time of Proctor's sentencing and
decides only the constitutionality of lifetime postrelease supervision as to Proctor alone."
2013 WL 6726286, at *1. Unlike in Proctor, the district court here made no factual
findings in this case that this court could review for similarity with Proctor. Further,
Rodriguez presented no evidence that his own character is similar to Proctor, such as his
risk of recidivism, whether therapy would help him, or any other personal characteristics
such as a history of sexual abuse. Proctor does not control here.

Rodriguez did not preserve his case-specific challenge to the constitutionality of
lifetime postrelease supervision under either the Eighth Amendment or § 9 of the Kansas
Constitution. His categorical challenge under the Eighth Amendment fails under
established Kansas precedent.

Affirmed.