State v. Rothstein

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NOT DESIGNATED FOR PUBLICATION

No. 114,749

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JOHN M. ROTHSTEIN,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed December 2,
2016. Affirmed.

Sam Schirer, of Kansas Appellate Defender Office, for appellant.

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

Before MALONE, C.J., STANDRIDGE, J., and HEBERT, S.J.

Per Curiam: John M. Rothstein appeals the district court's decision to modify his
postrelease supervision term from 36 months to lifetime following his convictions of two
counts of attempted aggravated indecent liberties with a child. Rothstein first claims that
lifetime postrelease supervision is an illegal sentence in his case due to a conflict between
K.S.A. 2015 Supp. 22-3717(d)(1)(G) and K.S.A. 2015 Supp. 22-3717(d)(1)(D). Second,
Rothstein claims that lifetime postrelease supervision constitutes cruel and/or unusual
punishment. For the reasons stated herein, we reject both claims and affirm the district
court's judgment.

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On November 6, 2008, the State charged Rothstein with two counts of aggravated
indecent liberties with a child, each count being an off-grid person felony punishable by a
term of life imprisonment of not less than 25 years. The complaint alleged the crimes
were committed between April 2008 and October 20, 2008. Rothstein was 32 years old at
the time of the offenses. The complaint alleged that the victims, Rothstein's daughters,
were under 14 years of age.

On March 2, 2009, pursuant to plea negotiations, Rothstein agreed to plead guilty
to two counts of attempted aggravated indecent liberties with a child. The State agreed to
support Rothstein's motion for a departure from a Jessica's Law life sentence to a Kansas
Sentencing Guidelines Act (KSGA) grid sentence for a severity level 1 person felony.
Both parties agreed to recommend concurrent midrange sentences. On April 10, 2009, the
district court granted Rothstein's departure motion and imposed a controlling sentence of
155 months' imprisonment with 36 months' postrelease supervision.

On April 22, 2015, the State filed a motion to correct illegal sentence. The State
contended that, on the dates Rothstein's crimes were committed, K.S.A. 22-3717(d)(1)(G)
required a sentence of lifetime postrelease supervision for a conviction of attempted
aggravated indecent liberties with a child. At the motion hearing, defense counsel argued
that imposition of lifetime postrelease supervision was cruel and unusual punishment.
After hearing arguments of counsel, the district court ruled that the 36-month postrelease
supervision term was an illegal sentence. The district court considered Rothstein's
constitutional challenge but ruled that a sentence of lifetime postrelease supervision was
not cruel and unusual punishment. Thus, the district court granted the State's motion and
imposed a sentence of lifetime postrelease supervision. Rothstein timely appealed.

On appeal, Rothstein first claims that his lifetime postrelease supervision sentence
is illegal. Specifically, he argues that K.S.A. 22-3717 was amended in 2013 and the
amended statute applies to his pending case. As a result of the amendment, Rothstein
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contends that K.S.A. 2015 Supp. 22-3717(d)(1)(D) and K.S.A. 2015 Supp. 22-
3717(d)(1)(G) directly conflict. He argues that under the rule of lenity, his postrelease
supervision term should be 36 months under K.S.A. 2015 Supp. 22-3717(d)(1)(D), rather
than lifetime under K.S.A. 2015 Supp. 22-3717(d)(1)(G).

Interpretation of a sentencing statute is a question of law over which appellate
courts have unlimited review. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098
(2015). Also, whether a sentence is illegal within the meaning of K.S.A. 22-3504 is a
question of law over which the appellate court has unlimited review. State v. Lee, 304
Kan. 416, 417, 372 P.3d 415 (2016).

Rothstein's statutory argument recently was rejected by this court in State v.
Herrmann, No. 114,887, 53 Kan. App. 2d ___, ___ P.3d ___ (filed November 18, 2016).
In Herrmann, this court determined that K.S.A. 22-3717(d)(1)(D) only applies to persons
convicted of a sexually violent crime after July 1, 1993, but before July 1, 2006.
Herrmann, Syl. ¶ 5. This court further held that the 2013 amendments to K.S.A. 22-
3717(d)(1)(D) do not alter the requirement in K.S.A. 22-3717(d)(1)(G) that a person
convicted of a sexually violent crime after July 1, 2006, receive lifetime postrelease
supervision. Herrmann, Syl. ¶ 4. We adopt this court's reasoning in Herrmann and apply
that reasoning to the facts herein. Thus, we conclude that on the dates Rothstein's crimes
were committed, K.S.A. 22-3717(d)(1)(G) required a sentence of lifetime postrelease
supervision for a conviction of attempted aggravated indecent liberties with a child and
the statutory amendments have not altered this result.

Next, Rothstein contends that, on the facts of his case, lifetime postrelease
supervision is cruel and/or unusual punishment in violation of § 9 of the Kansas
Constitution Bill of Rights and the Eighth Amendment to the United States Constitution.
When reviewing whether a sentence is cruel or unusual under the Kansas and United
States Constitutions, appellate courts review the district court's factual findings for
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substantial competent evidence and its legal conclusions de novo. This court does not
reweigh the evidence. State v. Funk, 301 Kan. 925, 933, 349 P.3d 1230 (2015).

Section 9 of the Kansas Constitution Bill of Rights prohibits the infliction of cruel
or unusual punishment. In State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), our
Supreme Court held 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." The Freeman court set forth three criteria for evaluating whether the length of a
sentence offends the constitutional prohibition against cruel or unusual punishment:

"(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.

The Eighth Amendment to the United States Constitution also prohibits cruel and
unusual punishment. Defendants may raise two types of challenges under the Eighth
Amendment: (1) A case-specific challenge in which the defendant claims, given the
circumstances of the case, that the length of his or her sentence is grossly
disproportionate to the offense; or (2) a categorical challenge in which the defendant
claims the punishment is inherently disproportionate for a specific category of offenders.
Graham v. Florida, 560 U.S. 48, 59-61, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010).
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Rothstein does not make a categorical challenge under the Eighth Amendment. He also
does not conduct a separate case-specific analysis under the Eighth Amendment; he
considers only the Freeman factors.
The first Freeman factor

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 present to
society. Courts consider 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. Freeman, 223 Kan. at 367.

The district court made several factual findings with respect to the first Freeman
factor. The district found that Rothstein had a limited criminal history. The district court
also found, based on the victim impact statements, that Rothstein's crimes were
dangerous and that the children were psychologically damaged by Rothstein's actions:

"[T]hese children were either afraid to or unaware of their being violated, afraid to report
or naive enough not to report what was going on with them for some period of time as a
result of the manipulation of them psychologically by Mr. Rothstein and he knew what he
was doing was wrong and he took advantage of the age and immaturity of these children
to perpetuate these crimes on them. Unfortunately, these kinds of crimes are considered
by society to be so heinous because oftentimes the victims are unable to resist or even
unaware of their need to resist and then later as they psychologically mature they reap the
benefits of their conscience in psychological damage of things that happen that they don't
understand. Takes them a long time to work through that. I know that one of these girls
wrote a letter and was talking about how her grades were affected, how her attention is
affected and things like that, so the crime is a seriously dangerous crime not because it's
so violent physically but because it's damaging psychologically to the victims."

The district court further found that Rothstein knew what he was doing was
wrong, but he did not stop himself until he was caught. The district court concluded that
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the first Freeman factor weighed against Rothstein and supported the imposition of
lifetime postrelease supervision.

Rothstein admits that the district court's findings are supported by substantial
competent evidence. However, he contends that the first factor should have still weighed
in his favor. He cites the fact that, at sentencing, the district court departed from a
Jessica's Law sentence because the court found Rothstein had psychological problems, he
had no significant criminal history, and he had accepted responsibility by pleading guilty.

In State v. Mossman, 294 Kan. 901, 903, 281 P.3d 153 (2012), the defendant was
convicted of aggravated indecent liberties with a 15-year-old victim. The defendant
contended his character did not support a sentence of lifetime postrelease supervision
because an assessment concluded he had a low risk of recidivism, he had no criminal
history, he accepted responsibility, and he had shown remorse for his crime. 294 Kan. at
911. However, our Supreme Court found the arguments unpersuasive because postrelease
supervision has other legitimate penological goals than punishment or retribution; it is
also designed to deter and rehabilitate sex offenders. 294 Kan. at 911.

Rothstein's case is similar to the facts in Mossman. Like the defendant in
Mossman, Rothstein had little criminal history and accepted responsibility for the crime.
Although the district court found that Rothstein may have psychological problems, it also
found that Rothstein knew what he was doing was wrong, but that he did not stop until he
was caught. Rothstein's arguments also ignore the penological purpose of postrelease
supervision—to deter and rehabilitate sex offenders. Lifetime postrelease supervision will
help ensure Rothstein does not offend again when he is released from prison because he
will remain under the watchful eye of his supervising officer. We agree with the district
court that the first Freeman factor weighs in favor of imposing lifetime postrelease
supervision in Rothstein's case.

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The second Freeman factor

The second Freeman factor requires the court to compare the punishment in the
present case with punishments imposed for more serious offenses in Kansas. Freeman,
223 Kan. at 367. With respect to the second Freeman factor, the district court stated:

"That other crimes, like, even taking of a human life don't require lifetime post release
doesn't really help him that much because sex crimes are more likely to be repeated by
the offenders than other kinds of violent crimes because of the psychological nature of
those crimes, so I think that I believe that it is justified that the legislature has provided
for lifetime post release for this crime where it doesn't get him in more serious crimes and
doesn't shock the conscience that the legislature has done that."

Rothstein contends that second-degree intentional murder is a more serious crime
than attempted indecent liberties with a child but that the postrelease supervision term for
second-degree intentional murder is much less severe. Rothstein acknowledges our
Supreme Court has rejected similar arguments. See State v. Funk, 301 Kan. 925, 941-42,
349 P.3d 1230 (2015); Mossman, 294 Kan. at 912-17; State v. Cameron, 294 Kan. 884,
892-93, 281 P.3d 143 (2012).

Additionally, Rothstein's argument that intentional second-degree murder is a
"more serious" crime than his offense ignores the fact that Rothstein's crimes of
attempted aggravated indecent liberties with a child are severity level 1 person offenses.
See K.S.A. 21-3301; K.S.A. 21-3504(a)(3)(A). Thus, the Kansas Legislature has made
the determination that Rothstein's crimes are just as severe as intentional second-degree
murder. The State has a "vital interest in protecting minors from sex activities" and
therefore sex crimes against minors are treated as violent felonies even if no physical
force is involved. Mossman, 294 Kan. at 909. We conclude that the second Freeman
factor weighs in favor of imposing lifetime postrelease supervision in Rothstein's case.

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The third Freeman factor

The third Freeman factor requires the court to compare the punishment for this
offense with punishments in other jurisdictions for the same offense. Freeman, 223 Kan.
at 367. As to the third Freeman factor, the district court found that "this crime is not so
out of line with what's provided for in other jurisdictions that it would violate the
constitution."

Rothstein contends that Kansas is in an extreme minority of states that impose
mandatory irrevocable lifetime postrelease supervision on individuals convicted of
attempted indecent touching offenses. However, this same argument previously has been
rejected by our Supreme Court.

The Mossman court conducted an extensive survey of lifetime postrelease
supervision laws in other states. 294 Kan. at 917-19. The court held that lifetime
postrelease supervision was not cruel or unusual punishment for aggravated indecent
liberties with a child, despite the fact that Kansas was one of only a few states that
required the punishment. 294 Kan. at 920. See also Funk, 301 Kan. at 942 (applying the
analysis to an attempt crime).

In State v. Reed, 51 Kan. App. 2d 107, 109, 115, 341 P.3d 616 (2015), this court
upheld lifetime postrelease supervision against a categorical challenge for a first-time
offender with no criminal history convicted of one count of attempted aggravated
indecent liberties with a child. The court noted that, other than Kansas, Nebraska is the
only state that imposes mandatory lifetime postrelease supervision for first-time
attempted indecent touching offenses. 51 Kan. App. 2d at 111. Based on the legal
authority in Kansas, we conclude that the third Freeman factor weighs in favor of
imposing lifetime postrelease supervision for Rothstein's convictions.

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In sum, lifetime postrelease supervision is not so disproportionate to Rothstein's
crime that it shocks the conscience or offends fundamental notions of human dignity. See
Mossman, 294 Kan. at 908. Moreover, the imposition of lifetime postrelease supervision
is not grossly disproportionate for Rothstein's crime. See Mossman 294 Kan. at 924.
Substantial competent evidence supports the district court's conclusion that lifetime
postrelease supervision in this case is constitutional under § 9 of the Kansas Constitution
and the Eighth Amendment to the United States Constitution.

Affirmed.