State v. Sebastian-Walker

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NOT DESIGNATED FOR PUBLICATION

No. 113,309

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ROYALE C. SEBASTIAN-WALKER,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; WARREN M. WILBERT, judge. Opinion filed September 23,
2016. Reversed and remanded with directions.

Ryan Eddinger, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before STANDRIDGE, P.J., HILL, J., and BURGESS, S.J.

Per Curiam: Royale C. Sebastian-Walker appeals the lifetime postrelease
supervision portion of his sentence. Sebastian-Walker pled guilty to rape and aggravated
burglary, which he committed when he was 16 years old. The district court sentenced
Sebastian-Walker to 178 months in prison and, as required by statute for the rape
conviction, mandatory lifetime postrelease supervision. Sebastian-Walker argues that the
latter part of his sentence is unconstitutional under State v. Dull, 302 Kan. 32, 61, 351
P.3d 641 (2015), cert. denied 136 S. Ct. 1364 (2016), which held that mandatory lifetime
postrelease supervision is categorically unconstitutional when imposed on a juvenile who
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was convicted of aggravated indecent liberties with a child. Because the reasoning in Dull
encompasses juveniles convicted of rape, we reverse the lifetime postrelease supervision
portion of Sebastian-Walker's sentence.

FACTUAL AND PROCEDURAL BACKGROUND

On September 12, 2014, Sebastian-Walker pled guilty to one count of rape and
one count of aggravated burglary. The crimes were committed when Sebastian-Walker
was 16 years old. The district court sentenced Sebastian-Walker to 178 months in prison.
Because he was convicted of rape, the court also sentenced Sebastian-Walker to
mandatory lifetime postrelease supervision under K.S.A. 2015 Supp. 22-3717(d)(1)(G)
("[P]ersons convicted of a sexually violent crime committed on or after July 1, 2006, and
who are released from prison, shall be released to a mandatory period of postrelease
supervision for the duration of the person's natural life."); see also K.S.A. 2015 Supp. 22-
4902(c) ("Sexually violent crime" includes rape, as defined in K.S.A. 2015 Supp. 21-
5503).

Sebastian-Walker did not raise a cruel-and-unusual-punishment argument in his
pleadings to the district court or during oral argument at his sentencing hearing.
Sebastian-Walker argues for the first time on appeal that the district court's order of
lifetime postrelease supervision is categorically unconstitutional under the Eighth
Amendment to the United States Constitution, relying on the recent holding in Dull.

Preservation of Issue

Neither party raises the issue of whether the constitutionality of Sebastian-
Walker's sentence is preserved for appeal. However, this court must note that, generally,
constitutional issues may not be raised for the first time on appeal. See State v. Ortega-
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Cadelan, 287 Kan. 157, 159, 194 P.3d 1195 (2008). There are three exceptions to the
general rule:

"'(1) The newly asserted claim involves only a question of law arising on proved or
admitted facts and is determinative of the case; (2) consideration of the claim is necessary
to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the
district court is right for the wrong reason.'" State v. Gomez, 290 Kan. 858, 862, 235 P.3d
1203 (2010).

The Dull court held that a categorical proportionality challenge may be raised for
the first time on appeal. 302 Kan. at 38-39. Because the factors assessed in a categorical
proportionality test are not case specific and generally only raise questions of law, Dull
could maintain his claim on that ground even though it was not raised to the district court.
302 Kan. at 39. As Sebastian-Walker argues that his sentence is categorically
unconstitutional under Dull, we will hear Sebastian-Walker's claim for the first time on
appeal.

Standard of Review

"A categorical proportionality challenge under the Eighth Amendment to the
United States Constitution implicates questions of law, and this court has unlimited
review. A [juvenile's] constitutional challenge to the lifetime postrelease supervision
portion of [a rape] sentence is an indirect attack on the constitutionality of the statute as
applied." Dull, 302 Kan. 32, Syl. ¶ 3.

Sebastian-Walker claims that the lifetime postrelease supervision portion of his
sentence is unconstitutional under Dull, which held that such punishment is categorically
unconstitutional under the Eighth Amendment when imposed on a juvenile convicted of
aggravated indecent liberties with a child. 302 Kan. at 61. On its limited holding, Dull
does not apply to juvenile defendants who were convicted of rape, which is a crime with
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a higher severity level than aggravated indecent liberties with a child. Compare K.S.A.
2015 Supp. 21-5503 with K.S.A. 2015 Supp. 21-5506. However, the Dull court based its
decision on an extensive examination of the sentencing of juvenile offenders in cases
involving the death penalty, lifetime without parole, and mandatory lifetime supervision.
The court specifically found that the reasoning behind mandatory lifetime postrelease
supervision for sex offenders not as applicable to juveniles as compared to adults. 302
Kan. at 60-61. We find that the categorical reasoning articulated in Dull applies to the
crime of rape committed by a juvenile.

The Eighth Amendment provides: "Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted." "[A]n Eighth
Amendment challenge to a term-of-years sentence as disproportionate and therefore cruel
and unusual encompasses cases in which the court implements the proportionality
standard based on certain categorical restrictions." Dull, 302 Kan. at 44. In considering a
categorical challenge under the Eighth Amendment, an appellate court uses a two-step
process. First, the court considers objective indicia of society's standards to determine
whether there is a national consensus against the sentencing practice at issue. Second, the
court must determine in the exercise of its own independent judgment whether the
punishment in question violates the Constitution. 302 Kan. at 39 (citing Graham v.
Florida, 560 U.S. 48, 61, 130 S. Ct. 2011, 176 L. Ed. 2d 825 [2010]).

Under the first step, the Dull court determined that Dull failed to demonstrate a
national consensus against sentencing juveniles to mandatory lifetime postrelease
supervision or against mandatory minimum sentences; however, the court also noted that
the "application of adult mandatory sentencing statutes to juveniles skews the analysis—
along with the changing landscape of juvenile sentencing." 302 Kan. at 50. The court
then proceeded with the second part of the analysis.

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Next, in exercising its independent judgment, the Dull court considered three
relevant factors: the diminished culpability of juveniles, the severity of lifetime
postrelease supervision, and the legitimate penological goals of the punishment. For
purposes of sentencing, the court noted that children are constitutionally different and
"'have diminished culpability and greater prospects for reform.'" Dull, 302 Kan. at 51
(quoting Miller v. Alabama, 567 U.S. __, 132 S. Ct. 2455, 2464, 183 L. Ed. 2d 407
[2012]). Juveniles lack maturity and have an underdeveloped sense of responsibility, are
more vulnerable to negative influences, and lack fully formed character traits. The
Kansas Supreme Court concluded that "'"juvenile offenders cannot with reliability be
classified among the worst offenders."'" 302 Kan. at 52 (quoting State v. Ruggles, 297
Kan. 675, 682, 304 P.3d 338 [2013]).

The Dull court acknowledged that "mandatory lifetime postrelease supervision is a
severe sanction in Kansas." 302 Kan. at 53. The court laid out verbatim the entirety of the
conditions of postrelease supervision as listed on the Kansas Department of Corrections
website to illustrate how they "restrain one's freedom with significant restrictions and
limitations." 302 Kan. at 55. In summary, once a defendant is released from prison, he or
she must: register with and report to the local sheriff as directed; report to his or her
parole officer as directed; undergo a polygraph examination anytime the parole officer
directs; pay supervision costs and other costs as directed by the parole officer; not travel
outside the state without permission; refrain from alcohol without permission; and refrain
from owning or possessing any firearms. See 302 Kan. at 56. Moreover, the court noted
that revocation of lifetime postrelease supervision could result in further incarceration up
to a lifetime sentence without the possibility of parole. 302 Kan. at 56.

Finally, Dull considered the penological goals of lifetime postrelease supervision,
including retribution, deterrence, and incapacitation, in the context of a juvenile offender
who committed a sex offense. The Dull court held that juveniles should be treated
differently, finding:
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"'[R]etribution, which relates to a defendant's blameworthiness, is less compelling in light
of a juvenile's lesser culpability,' [citation omitted], and no showing was made that
mandatory lifetime postrelease supervision 'is not grossly disproportionate in light of the
justification offered.' [Citation omitted.] Second, the deterrent effect of mandatory
lifetime postrelease supervision only works if the offender refrains from negative actions
based on potential consequences; however, juveniles lack the ability to take the requisite
step back, analyze their actions, recognize the consequences, and choose a difference
course of action. [Citation omitted.]
"Finally, while we have held the goals of rehabilitation and incapacitation are
served by the imposition of mandatory lifetime postrelease supervision on adult offenders
given their propensity to strike again, juveniles have a lower risk of recidivism." 302
Kan. at 60.

The Dull court concluded that despite the lack of a national consensus, mandatory
lifetime postrelease supervision for juveniles is inappropriate, finding:

"Juveniles, especially those who commit a nonhomicide offense, are clearly viewed with
a diminished moral culpability compared to adults. [Citation omitted.] Mandatory
lifetime postrelease supervision for a juvenile is a severe lifetime sentence, even when the
potential for further imprisonment is not considered, because the juvenile's liberty
interests are severely restricted for life by the terms of the mandatory lifetime postrelease
supervision. While we have found mandatory lifetime postrelease supervision
constitutional for adults, the same factors that result in a diminished culpability for
juveniles, i.e., recklessness, immaturity, irresponsibility, impetuousness, and ill-
considered decision making, along with their lower risks of recidivism, all diminish the
penological goals of lifetime supervision for juvenile sex offenders." (Emphasis added.)
302 Kan. at 60-61.

The reasoning in Dull applies in this case. All the findings in Dull and the cases
cited therein concerning the mental status and environmental vulnerabilities of juveniles
are not crime specific. Such analysis has been been applied in cases involving juveniles
charged with homicide. See Miller, 132 S. Ct. 2455. In Dull, the defendant was charged
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with rape and pled guilty to aggravated indecent liberties with a child as part of a multi
case plea agreement. In the present case the charge was rape. Both rape and aggravated
indecent liberties are considered sexually violent crimes. There is simply no way to
distinguish the reasoning and the ruling in the Dull case from the facts and circumstances
in this case. The ordering of mandatory lifetime postrelease supervision in this case is
unconstitutional.

Reversed and remanded.