State v. Taylor

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NOT DESIGNATED FOR PUBLICATION

No. 118,859

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JEFFREY ALAN TAYLOR,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed July 19, 2019.
Affirmed.

Jeffrey Alan Taylor, pro se appellant.

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

Before STANDRIDGE, P.J., GARDNER, J., and WALKER, S.J.

PER CURIAM: Jeffrey Alan Taylor was charged with two counts of rape, two
counts of aggravated sexual battery, and one count of criminal restraint. As part of a plea
agreement, Taylor entered Alford pleas to two counts of aggravated sexual battery in
exchange for the State's dismissal of the remaining counts. An Alford plea allows a
defendant to plead guilty without admitting the facts of the offense or while maintaining
his or her innocence in order to obtain a favorable plea deal. See North Carolina v.
Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); State v. Case, 289 Kan. 457,
460, 213 P.3d 429 (2009).
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The district court ultimately sentenced Taylor to 130 months in prison followed by
lifetime postrelease supervision. On appeal, Taylor claims that the district court's decision
to impose lifetime postrelease supervision is unconstitutional and that his sentence is
illegal as a result of ineffective assistance of counsel.

A. Lifetime postrelease supervision

On appeal, Taylor argues the district court's decision to impose lifetime
postrelease supervision constitutes cruel and unusual punishment in violation of the
Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution
Bill of Rights. The State contends that Taylor's case-specific Eighth Amendment
challenge and his § 9 challenge have not been properly preserved for our review. An
appellate court exercises unlimited review over questions of preservation. State v. Reed,
306 Kan. 899, 902, 399 P.3d 865 (2017).

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).

1. 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
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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).

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.

With regard to this first Freeman factor, Taylor argues the following
considerations presented to the district court at sentencing support a finding that lifetime
postrelease supervision in his case is cruel or unusual in violation of § 9 of the Kansas
Constitution Bill of Rights:

 he was innocent and only pleaded guilty because he recognized that he was
facing up to 600 months in prison if convicted of the rape charges;
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 there was no physical evidence to show the allegations in the probable
cause affidavit were true;
 his friends and family have supported him and did not believe the
accusations;
 his plea and waiver of the preliminary hearing prevented the victim from
having to testify;
 most of his criminal history resulted from alcohol and run-ins with the
police, and most of the violent offenses were remote in time;
 if he had a propensity for sexual battery, it would have shown up a long
time ago;
 he had been a "model prisoner" since his arrest;
 he needed to be able to support his family in the future; and
 he had his own health problems and would need a liver transplant in the
next five years, which would make him a liability to the state.

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 "I think under the
law that [lifetime postrelease supervision] is what is called for. I will go over your appeal
rights with you in a little bit, [your attorney] will go over that in more detail, and you can
certainly appeal the Court's imposition of the lifetime supervision." The court did not
address the Freeman factors, any of the specifics of the incident, or any of the potentially
mitigating arguments Taylor 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 Taylor's sentence is unconstitutional under Freeman. See State v. Seward, 289
Kan. 715, 720-21, 217 P.3d 443 (2009), disapproved of on other grounds by State v.
Jolly, 301 Kan. 313, 342 P.3d 935 (2015).
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Supreme Court Rule 165 (2019 Kan. S. Ct. R. 221) 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 of a motion invoking the judge's duty
under Rule 165, if necessary." 289 Kan. at 721.

Appellate courts have followed the warning in Seward 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."); State v. Reed, 50 Kan. App. 2d 1133, 1138-39, 336 P.3d 912
(2014) (defendant's failure to ensure 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").

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Taylor 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 Taylor's
case-specific claims that his sentence of lifetime postrelease supervision is
unconstitutional under § 9 of the Kansas Constitution Bill of Rights.

2. Eighth Amendment to the United States Constitution

Although somewhat difficult to discern from his brief, it appears Taylor 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.

a. 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., State v. Mossman, 294 Kan. 901, 908, 281 P.3d 153
(2012).

Taylor 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 Taylor does not meet the threshold inquiry, his case-specific
challenge fails.

b. 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 two subcategories of categorical
constitutional challenges: (1) those considering the nature of the offense and (2) those
considering the characteristics of the offender. Graham, 560 U.S. at 60-61. It appears
from his brief that Taylor's argument relies on the first category: the class of offenders
who commit a sexually violent offense.

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The Supreme Court in Graham outlined a two-part 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. 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,' the Court
must determine in the exercise of its own independent judgment whether the punishment
in question violates the Constitution. [Citations omitted.]" 560 U.S. at 61.

Here, Taylor argues that there is a national consensus against lifetime postrelease
supervision for sexually violent offenders. He argues that only Oklahoma, Colorado, and
Kansas impose lifetime postrelease supervision without the possibility of release from
supervision for sexually violent 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. Taylor also argues that compared to other jurisdictions, Kansas'
imposition of lifetime postrelease supervision is harsh.

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. Mossman, 294 Kan. at 930. 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
State v. Cameron, 294 Kan. 884, 897, 281 P.3d 143 (2012) (same analysis).

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

The Kansas Supreme Court has consistently held that there is no consensus against
lifetime postrelease supervision for violent sex offenses, and Taylor provides no reason
for this court to hold otherwise now.

Under the second part of the Graham test, 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.

Taylor argues that lifetime postrelease supervision for his crime does not serve any
of the penological goals addressed by Graham. He claims that the goal of retribution is
not served because lifetime postrelease supervision is not related to his personal level of
culpability. Taylor also claims that the sentence does not meet the goal of deterrence
because an offender's criminal history already serves to deter him or her from committing
additional crimes. Taylor further claims 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
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broadly to all sexual offenders without determining the risk that the offender will
reoffend. Finally, Taylor claims 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, 294 Kan. at 930, 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." Williams, 636 F.3d at 1234.

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

B. Illegal sentence arising from ineffective assistance of counsel

Taylor contends that ineffective assistance of counsel, particularly at sentencing,
led the district court to incorrectly calculate his criminal history score, which resulted in
imposition of an illegal sentence. The State claims we should not reach the merits of
Taylor's claim of illegal sentence because he failed to properly brief it. And even if this
court reaches the merits, the State claims the sentence imposed by the district court was
not illegal.

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To succeed on a claim of ineffective assistance of counsel, a defendant must show
that (1) counsel's performance was deficient and (2) counsel's deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). In other words, the defendant must show there is a
reasonable probability the result would have been different but for counsel's errors. State
v. McDaniel, 306 Kan. 595, 607, 395 P.3d 429 (2017).

When a defendant raises an ineffective assistance of trial counsel argument for the
first time on appeal, Kansas appellate courts can dispose of that claim in one of three
ways:

"First, an appellate court may follow the general rule and decline to address the issue,
leaving the defendant to pursue relief through a timely K.S.A. 60-1507 motion. See State
v. Levy, 292 Kan. 379, 388-89, 253 P.3d 341 (2011). Second, the appellate court may
remand to the district court for examination of the issue in further proceedings pursuant
to State v. Van Cleave, 239 Kan. 117, 119-21, 716 P.2d 580 (1986). See State v. Dull, 298
Kan. 832, 839, 317 P.3d 104 (2014) ('The usual course of action is a request by appellate
counsel for remand to district court for a hearing on the ineffective assistance claim.').
Finally, although rare, '"there are circumstances when no evidentiary record need be
established, when the merit or lack of merit of an ineffectiveness claim about trial
counsel is obvious," and an ineffectiveness claim can therefore be resolved' by an
appellate court. 298 Kan. at 839 (quoting Rowland v. State, 289 Kan. 1076, 1084-85, 219
P.3d 1212 [2009]); see State v. Carter, 270 Kan. 426, 433, 14 P.3d 1138 (2000) (remand
would serve no purpose where assessment by trial court unnecessary because record on
appeal sufficiently complete for appellate court to decide issue)." State v. Reed, 302 Kan.
227, 233-34, 352 P.3d 530 (2015).

We find the record on appeal in this case to be sufficient for us to review Taylor's
claim. Here, Taylor claims defense counsel was deficient in failing to argue that his two
prior convictions in Texas for assault on a public servant (listed as prior conviction
numbers 39 and 40 in the presentence investigation report) did not have comparable
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offenses in Kansas and, therefore, should not have been classified as felonies for
purposes of criminal history. Notwithstanding his claim, Taylor readily acknowledges
defense counsel lodged an objection to his criminal history score at the sentencing
hearing. Taylor does not dispute that counsel adamantly advised him not to waive the
challenge but that Taylor ignored that advice. Taylor also does not dispute that defense
counsel requested a continuance but he opposed it and insisted on proceeding with
sentencing that day. Based on these undisputed facts, we find no deficiency in counsel's
performance and no merit to Taylor's claim of ineffective assistance of counsel.

Affirmed.