State v. Valverde

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NOT DESIGNATED FOR PUBLICATION

No. 116,591


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JUAN VALVERDE JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Finney District Court; ROBERT J. FREDERICK, judge. Opinion filed October 27,
2017. Affirmed.

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

Nicholas C. Vrana, assistant county attorney, Susan Hillier Richmeier, county attorney, and
Derek Schmidt, attorney general, for appellee.

Before HILL, P.J., ATCHESON and SCHROEDER, JJ.

PER CURIAM: Defendant Juan Valverde Jr. has challenged as constitutionally
cruel and unusual punishment the 39-month sentence the Finney County District Court
imposed on him for failing to maintain his registration as a violent offender under the
Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq. Valverde asserts a
categorical challenge to the sentences imposed on violent offenders for KORA violations.
Given the stringent standards governing those claims, we find the sentence to be
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constitutionally acceptable and, therefore, affirm the district court's punishment of
Valverde.

Valverde was convicted of involuntary manslaughter in 1999 and aggravated
assault with a court finding that he used a deadly weapon in 2014. Each of those
convictions required that he register as a violent offender under KORA. The statutory
registration scheme applies to criminal defendants convicted of designated sex crimes,
violent crimes, and drug crimes. A designated offender must register quarterly with the
sheriff's departments in the counties where he or she resides, works, or attends school and
must promptly update any changes in registration information. Much of the information
is made available to the general public. Failure to register as required under KORA is
itself a felony. The presumptive sentences vary depending on the nature of the violation,
and repeat KORA violators face increased punishment. K.S.A. 2016 Supp. 22-4903.

Valverde was 12 days late in updating registration information in July 2015 and
failed to make a required quarterly registration in October 2015. The county attorney then
filed charges against Valverde for violating KORA. Eventually, Valverde and the county
attorney entered into an agreement under which Valverde pleaded no contest to one count
of failure to register as a first-time KORA violator, a severity level 6 person felony.
Valverde's criminal history includes convictions in addition to those for involuntary
manslaughter and aggravated assault. For purposes of this appeal, Valverde does not
dispute he has convictions for two person felonies that placed him in criminal history
category B. The district court imposed a midrange presumptive guidelines sentence of 39
months in prison on Valverde after denying his request for a dispositional departure to
probation. Valverde has appealed.

For his single issue on appeal, Valverde argues the sentence he received for the
KORA violation reflects a categorically cruel and unusual punishment violating the
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Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution
Bill of Rights. Valverde has raised this argument for the first time on appeal.

Appellate courts typically will not address issues a party has failed to present to
the district court. But that rule is not invariable. An appellate court may consider a new
issue if it: (1) presents a question of law arising on proved or admitted facts and is finally
determinative of the case; (2) is necessary to serve the ends of justice or to prevent denial
of a fundamental right; or (3) would uphold the decision of the district court on a proper
ground when the district court has relied on an incorrect ground. State v. Phillips, 299
Kan. 479, 493, 325 P.3d 1095 (2014). The Kansas Supreme Court has taken up
categorical challenges to the constitutionality of criminal punishments for the first time
on appeal. See State v. Dull, 302 Kan. 32, 38-39, 351 P.3d 641 (2015) (lifetime
postrelease supervision). This presents an analogous circumstance, so we may consider
the issue under the first exception and probably the second, as well. Valverde, likewise,
may assert a categorical challenge to the constitutionality of the punishment scheme on
direct appeal, even though an attack on his individual guidelines sentence would be
improper. See State v. Huerta, 291 Kan. 831, 839-41, 247 P.3d 1043 (2011).

We suppose without deciding that Valverde's categorical challenge lies under both
the United States Constitution and the Kansas Constitution. See State v. Wieland, No.
114,900, 2017 WL 657999, at *6 (Kan. App.) (unpublished opinion), rev. denied 306
Kan. ___ (August 24, 2017). But the analytical model for each ought to be the same, so
neither one provides greater protection to a criminal defendant. See State v. Petersen-
Beard, 304 Kan. 192, 210-11, 377 P.3d 1127 (2016) (Eighth Amendment and § 9 of the
Kansas Constitution Bill of Rights construed to secure same protections against cruel and
unusual punishment); Wieland, 2017 WL 657999, at *6.

In making a categorical challenge under the Eighth Amendment, a criminal
defendant argues a punishment to be so disproportionately severe for the offense or for a
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broad class of offenders as to be constitutionally unacceptable in every instance. Graham
v. Florida, 560 U.S. 48, 60-61, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010); State v.
Williams, 298 Kan. 1075, 1086, 319 P.3d 528 (2014); State v. Mossman, 294 Kan. 901,
927-28, 281 P.3d 153 (2012). That is, the sentence is manifestly excessive for the
criminal wrong without regard to the particular facts or circumstances of the defendant's
case. In assessing a categorical challenge, the courts consider first whether a "national
consensus" would preclude the punishment and then whether the punishment fails to
comport with a reasoned judicial application of the Eighth Amendment. Graham, 560
U.S. at 61 (first step asks "whether there is a national consensus against the sentencing
practice"; second step entails the court's "independent judgment whether the punishment
in question violates the Constitution" in light of case precedent and "'its own
understanding and interpretation of the Eighth Amendment's text, history, meaning, and
purpose'") (quoting Kennedy v. Louisiana, 554 U.S. 407, 421, 128 S. Ct. 2641, 171 L. Ed.
2d 525 [2008]); Mossman, 294 Kan. at 929.

With the parties' assistance, we have identified six other states that statutorily
require fairly broad registration of violent offenders and impose criminal penalties for the
failure to comply. The range of crimes triggering registration varies from state to state, as
does the punishment for registration violations. But the schemes are generally
comparable to KORA in those respects.[1] Three states impose registration requirements
for individuals convicted of violent crimes directed at specific classes of victims—either
children or law enforcement officers. And California requires individuals convicted of a
wide range of gang related crimes to register.[2] The remaining 39 states and the District
of Columbia apparently have not legislatively addressed registration of violent offenders,
according to the parties' briefing. Apart from surveying statutory enactments, the parties
have pointed us to nothing else they suggest informs a "national consensus" on the
registration of violent offenders.

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[1]The comparable states are Connecticut, Florida, Indiana, Montana, Oklahoma,
and Washington. Connecticut requires a person convicted of committing an offense "with
a deadly weapon" to register. Conn. Gen. Stat. Ann. § 54-280a(a)(1). Failure to comply
with the registration is a class D felony punishable by up to 5 years' imprisonment. Conn.
Gen. Stat. Ann. § 54-280a(c); Conn. Stat. Ann. § 53a-35a(8). Florida requires "career
offenders" to register, a class defined as anyone who is "a habitual violent felony
offender, a violent career criminal, or a three-time violent felony offender . . . or . . . a
prison release reoffender." Fla. Stat. § 775.261(2)(a). Failure to comply is a third-degree
felony punishable by imprisonment up to 5 years. Fla. Stat. § 775.261(8); Fla. Stat. §
775.082(3)(e). Indiana requires violent offender registration. Ind. Code § 11-8-8-7; Ind.
Code § 11-8-8-5. Failure to comply is a level 5 or 6 felony punishable by up to 6 years'
imprisonment. Ind. Code § 11-8-8-17; Ind. Code § 35-50-2-6(b); Ind. Code § 35-50-2-
7(b). Montana requires violent offender registration. Mont. Code Ann. § 46-23-504.
Failure to comply is punishable by up to 5 years' imprisonment. Mont. Code Ann. § 46-
23-507. Oklahoma requires violent offender registration. Okla. Stat. tit. 57 § 593. Failure
to comply is punishable by up to 5 years' imprisonment. Okla. Stat. tit. 57 § 599.
Washington provides registration for "[f]elony firearm offenders." Wash. Rev. Code §
9.41.330. Failure to comply "is a gross misdemeanor," punishable by 364 days "in the
county jail." Wash. Rev. Code § 9.41.335; Wash. Rev. Code § 9.a.20.021(2).

[2] In Illinois, a "violent offender against youth" is required to register. 730 Ill.
Comp. Stat. Ann. § 154/10(a). Failure to comply can be a class 2 or 3 felony depending
on the type of violation, punishable by up to 5 years. 730 Ill. Comp. Stat. § 154/60; 730
Ill. Comp. Stat. § 5/5-4.5-35(a) and 40(a). Similar to Illinois, North Dakota requires
registration for "[o]ffenders against children." N.D. Cent. Code § 12.1-32-15. Failure to
comply is a class C felony punishable by up to 5 years in prison. N.D. Cent. Code § 12.1-
32-15(9); N.D. Cent. Code § 12.1-32-01(4). Louisiana requires "[r]egistration of
offenders who commit violent offenses against peace officers." La. Stat. Ann. § 15:643.
Crimes include murder, manslaughter, and battery, among others. La. Stat. Ann. §
15:642(2)(c). Failure to comply is punishable by imprisonment up to 90 days. La. Stat.
Ann. § 15:646. Lastly, California requires registration of individuals convicted of gang
crimes. Cal. Penal Code § 186.30. Failure to comply is a misdemeanor. Cal. Penal Code §
186.33(a).

Based on that information, we cannot say Valverde has demonstrated a national
consensus against violent offender registration or that KORA itself is such an outlier,
either in scope or penalty, as to be singularly harsh in a way suggesting, let alone
establishing, constitutional infirmity. Half a dozen other states have similar schemes.
That, on its face, seems to undercut a consensus against violent offender registration. And
we have been directed to nothing indicating any of those states, in practice, curtails or
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avoids violent offender registration in a way at odds with what its statutes permit. See
Graham, 560 U.S. at 66-67 (A particular punishment, though statutorily permitted, may
be so rarely imposed as to indicate consensus against it.).

The test in Graham does not, however, demand legislative uniformity less one to
demonstrate a consensus, so a handful of states, though united in their approach, might be
sufficiently at odds with the remaining states to be in constitutionally perilous territory.
Here, the four states that have enacted narrow registration statutes arguably stand in the
opposite camp: They have considered violent offender registration and have chosen an
approach markedly more limited than what Kansas and six other states have adopted.
Those four states, of course, no more represent a national consensus than do the seven
states with broad violent offender registration schemes.

Again, from what has been argued to us, the remaining states are inscrutable on
violent offender registration. We have no indication any of them have legislatively
considered and rejected measures to impose violent offender registration or, perhaps even
more tellingly, have repealed such measures. Those states, then, do not portray a
consensus against violent offender registration, so much as a consensus of indifference
about it. On that basis, Valverde has failed to make his case under the first part of the test
for categorical challenges outlined in Graham.

Valverde also comes up short on the second part that draws on case authority and
constitutional history to inform the application of the Eighth Amendment to his
punishment of 39 months in prison for failing to register as a violent offender. The
hallmark of unconstitutionality for a term of imprisonment is a marked disproportionality
of that term to the nature of the offense, especially taking into account the traditional
purposes of punishment—retribution, incapacitation, deterrence, and rehabilitation. See
Graham, 560 U.S. at 67-68, 71. In a categorical challenge, the analysis focuses on the
statutorily mandated punishment and on the class of criminal defendants affected rather
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than on the circumstances of the particular defendant asserting the claim. We turn to
those considerations.

Here, the class includes anyone required to register under KORA as a violent
offender. So we must consider the constitutionality of the registration scheme for persons
convicted of intentional first-degree murder, not just aggravated assault with a deadly
weapon. See K.S.A. 2016 Supp. 22-4902(e)(1)(B), (e)(2). Likewise, the base penalty for
a severity level 6 KORA violation is 17 to 19 months in prison with a statutory
presumption that the district court will place the defendant on probation. The base penalty
applies to a defendant with no scoreable criminal history. For criminal history purposes,
the conviction triggering KORA registration cannot be scored in determining the
guidelines punishment for a registration violation. State v. Deist, 44 Kan. App. 2d 655,
657-58, 239 P.3d 896 (2010).

The Kansas Supreme Court has consistently recognized that KORA promotes a
substantial public safety interest by monitoring and making available information about
individuals convicted of dangerous crimes who as a group pose an elevated risk of
reengaging in that underlying criminal activity. See State v. Meredith, 306 Kan. 906, 399
P.3d 859, 863 (2017) (declining to draw distinction as matter of law between sex
offenders, as group, and drug offenders and violent offenders with respect to public
purpose in requiring KORA registration); Petersen-Beard, 304 Kan. at 207-08 (outlining
public purpose in requiring registration of sex offenders). In turn, the criminal
punishment imposed for failing to comply with KORA necessarily promotes those same
public interests especially by deterring violations.

A first-time KORA violator whose only previous crime was the one requiring
registration typically would be placed on probation in conformity with the statutorily
presumptive disposition. That form of punishment can't be characterized as
impermissibly retributive or incapacitating under the Eighth Amendment even for a
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comparatively minor offense. Eighth Amendment history and jurisprudence affords an
especially wide deference to legislative determinations of appropriate punishments for
adult offenders in noncapital cases. See Harmelin v. Michigan, 501 U.S. 957, 994-96, 111
S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (finding mandatory life sentence without parole for
possession of more than 650 grams of cocaine did not violate Eighth Amendment); 501
U.S. at 998-99 (primacy of legislature in setting prison terms for specific crimes)
(Kennedy, J. concurring, joined by O'Connor, J. and Souter, J.); United States v.
Reingold, 731 F.3d 204, 211 (2d Cir. 2013) (deference to legislative determinations of
criminal punishments). The base punishment for a KORA violation doesn't violate the
Eighth Amendment.

The district court, of course, imposed a longer sentence on Valverde and sent him
to prison rather than placing him on probation. The reason, however, lay not in the nature
of the KORA violation itself but in Valverde's criminal history apart from that violation.
Whatever his crime of conviction, Valverde would have received a harsher sentence than
someone without any criminal history. So it's not entirely obvious that the enhanced
sentence Valverde received because of his criminal history figures into a categorical
challenge under the Eighth Amendment to the punishment imposed for KORA violations.

Assuming that it does, the United States Supreme Court has found no Eighth
Amendment violations for lengthy sentences imposed for relatively minor crimes based
on a defendant's status as a repeat felon. See Ewing v. California, 538 U.S. 11, 30-31, 123
S. Ct. 1179, 155 L. Ed. 2d 108 (2003). The Court recognized that statutes imposing
increased penalties for successive crimes reflect a legitimate legislative "policy choice
that individuals who have repeatedly engaged in serious or violent criminal behavior, and
whose conduct has not been deterred by more conventional approaches to punishment,
must be isolated from society in order to protect the public safety." 538 U.S. at 24; see
also State v. Troy, 215 Kan. 369, Syl. ¶ 7, 524 P.2d 1121 (1974) ("In general it may be
said that statutes which authorize the imposition of heavier penalties against recidivists or
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habitual offenders than against first offenders do not, as such, inflict cruel and unusual
punishment in violation of the Eighth Amendment."); United States v. Young, 766 F.3d
621, 627-28 (6th Cir. 2014) (discussing recidivism as factor in rejecting claimed Eighth
Amendment violation); United States v. Strahan, 565 F.3d 1047, 1052-53 (7th Cir. 2009)
(recidivism permits enhanced punishment; life sentence for conspiracy to distribute
illegal drugs does not violate Eighth Amendment for defendant with two previous felony
drug convictions). Based on that precedent, Valverde's sentence does not violate the
Eighth Amendment if the class were defined as defendants with past convictions for two
or more felonies or, more particularly, person felonies.

Affirmed.