State v. Wieland

1

NOT DESIGNATED FOR PUBLICATION

No. 114,900

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ANDREW ROBERT WIELAND,
Appellant.


MEMORANDUM OPINION

Appeal from Miami District Court; AMY L. HARTH, judge. Opinion filed February 17, 2017.
Affirmed.

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

Jason A. Oropeza, assistant county attorney, Elizabeth Sweeney-Reeder, county attorney, and
Derek Schmidt, attorney general, for appellee.

Before BUSER, P.J., ATCHESON and POWELL, JJ.

Per Curiam: Defendant Andrew Robert Wieland pleaded guilty in Miami County
District Court to two counts of attempted sexual exploitation of a child after law
enforcement officers found child pornography on his cell phone and on a computer he
had owned. He has challenged that part of his sentence placing him on lifetime
postrelease supervision as unconstitutionally cruel and unusual punishment. We find the
district court correctly rejected the challenge and affirm Wieland's judgment of
conviction, including the sentence.

2

The pertinent facts may be outlined briefly. The crimes came to light in early 2013
when a man bought a used computer Wieland had owned from a Johnson County
pawnshop. After discovering child pornography on the computer, the man turned the
computer over to law enforcement authorities. They found 168 images and 19 videos of
child pornography on the computer and were able to trace the files and their content to
Wieland. After Wieland was arrested, the officers seized his cell phone, and their search
of it uncovered 242 images of child pornography.

Wieland was charged in Miami County District Court and worked out a plea
arrangement with the prosecutor. As we have said, Wieland pleaded guilty to two counts
of attempted sexual exploitation of a child, a severity level 7 person felony violation of
K.S.A. 2012 Supp. 21-5510(a)(2). See K.S.A. 2012 Supp. 21-5301(c)(1) (attempted
crime scored two severity levels below completed crime). The district court imposed
consecutive sentences of 11 and 19 months on the charges, yielding a prison term of 30
months to be followed by lifetime postrelease supervision.

In the district court, Wieland argued that lifetime postrelease supervision violated
the prohibitions on cruel or unusual punishment in § 9 of the Kansas Constitution Bill of
Rights and the Eighth Amendment to the United States Constitution as applied to him and
as a categorical form of punishment for his crimes. The prosecutor and Wieland's lawyer
presented argument—but no evidence—to the district court on the constitutionality of the
sentence. The district court denied Wieland's challenge and in conformity with the
mandatory language of K.S.A. 2012 Supp. 22-3717(d)(1)(G) included lifetime
postrelease supervision as a component of Wieland's sentence.

Wieland has appealed and reprises his attack on the constitutionality of lifetime
postrelease supervision.

3

LEGAL ANALYSIS

On appeal, Wieland's constitutional challenge technically presents four issues: (1)
whether lifetime postrelease supervision as applied in this case violates the prohibition on
"cruel or unusual punishment" in the Kansas Constitution; (2) whether as applied in this
case, it violates the prohibition on "cruel and unusual punishment" in the Eighth
Amendment; (3) whether it is unconstitutional under the Kansas Constitution as a form of
punishment for a category or class of defendants or crimes relevant here; and (4) whether
it is similarly unconstitutional under the Eighth Amendment. For analytical purposes, the
as-applied challenges are functionally the same under the state and federal constitutions.
The categorical challenges are also analytically the same as each other, although they
differ from the as-applied challenges. The constitutional limitations on punishment in § 9
and the Eighth Amendment are worded slightly differently. The former is phrased in the
disjunctive and the latter in the conjunctive. The Kansas Supreme Court, however, has
never interpreted them to impose substantively different prohibitions. See State v.
Kleypas, 305 Kan. 224, 339, 382 P.3d 373 (2016).
As-Applied Challenges

In reviewing the district court's ruling on an as-applied challenge to the
constitutionality of a sentence, we apply the well-recognized bifurcated standard that
accords strong deference to the district court's factual findings supported by substantial
evidence but reserves to us unrestricted consideration of the legal conclusions resting on
those findings. See State v. Cameron, 294 Kan. 884, 888-89, 281 P.3d 143 (2012). We do
not discern in the record conflicting evidence or other relevant factual disputes. What we
have are questions of law. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010)
(appellate court exercises unlimited review over question of law); State v. Bennett, 51
Kan. App. 2d 356, 361, 347 P.3d 229 (when material facts undisputed, issue presents
question of law), rev. denied 303 Kan. 1079 (2015); Estate of Belden v. Brown County,
4

46 Kan. App. 2d 247, 258-59, 261 P.3d 943 (2011) (legal effect of undisputed facts
question of law).

The touchstone in assessing whether a punishment, as applied to a given
defendant, violates § 9 is gross disproportionality between the character of the
punishment on the one hand and the particular circumstances of both the crime and the
convicted criminal on the other. In State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950
(1978), the Kansas Supreme Court, thus, construed § 9 to prohibit "[p]unishment . . . 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." That remains the test. State v. Swint,
302 Kan. 326, 341-42, 352 P.3d 1014 (2015).

The Freeman court identified three components of the analysis for
unconstitutional disproportionality. The first factor examines "the nature of the offense
and the character of the offender . . . with particular regard to the degree of danger
present to society." 223 Kan. at 367. The examination should take into account the "facts
of the crime" and "violent or nonviolent nature of the offense" along with "the extent of
[the defendant's] culpability for" any resulting injuries and the way the punishment serves
recognized "penological purposes." 223 Kan. at 367. The second factor entails
comparison of the punishment with sentences for more serious offenses in Kansas. 223
Kan. at 367. If more serious crimes were punished less harshly, then the challenged
punishment would be constitutionally "suspect." 223 Kan. at 367. The final factor
requires comparison of the punishment to sentences in other jurisdictions for the same
offense. 223 Kan. at 367. The "Freeman factors" remain the guiding lights in analyzing
an as-applied challenge to a sentence. See Swint, 302 Kan. at 342.

Postrelease supervision imposes significant restrictions on a convicted defendant's
liberty. The defendant may not freely travel and must obtain advance approval for many
trips from a supervising parole officer. The defendant and his or her home are subject to
5

warrantless searches without probable cause. The defendant must report as directed by
his or her assigned parole officer. And he or she may not drink alcoholic beverages
without permission from a parole officer. There are other restrictions and conditions. See
State v. Dull, 302 Kan. 32, 53-55, 351 P.3d 641 (2015) (listing the terms and conditions
of postrelease supervisions), cert. denied 136 S. Ct. 1364 (2016). Most defendants must
complete a term of postrelease supervision between 12 and 36 months upon their release
from prison. A lifetime term, however, is just that—the rest of the defendant's life. There
is no provision for conditional or early release. 302 Kan. at 55. Although those lifetime
constraints are not as onerous as incarceration, the court recently described them as "a
severe sanction." 302 Kan. at 53.

In addition, if a defendant is convicted of a misdemeanor or felony while on
postrelease supervision, the prisoner review board may order him or her returned to
prison for a term not to exceed the remainder of the supervision period. K.S.A. 77-
5217(c). For someone on lifetime postrelease supervision that could be the rest of his or
her life. Depending upon the circumstances, that could be an exceptionally draconian
sanction.

Under the first Freeman factor, we must assess the character of that punishment—
its degradation of the defendant's liberty coupled with the duration of that degradation—
against the nature of the crimes and the defendant's background. Although Wieland was
convicted of attempted possession of child pornography, the charge plainly appears to
have been a legal fiction for purposes of the plea agreement. Such an arrangement is
proper when the defendant receives a benefit as a result. See McPherson v. State, 38 Kan.
App. 2d 276, 285, 163 P.3d 1257 (2007); State v. Snyder, No. 109,646, 2014 WL 802272,
at *3 (Kan. App. 2014) (unpublished opinion) (Atcheson, J., concurring). But Wieland
actually possessed a large amount of child pornography he acquired over a period of time
and stored on two devices. In analyzing the first Freeman factor, we are supposed to
6

consider the factual circumstances of the criminal conduct. So we are not limited to the
disembodied elements of the crime of conviction.

In debating the constitutionality of lifetime postrelease supervision for Wieland at
his sentencing hearing, both lawyers tacitly acknowledged he actually possessed child
pornography and premised their respective positions on that acknowledgment. But we
have little information about the nature of the child pornography Wieland acquired.
Everybody agrees he did not produce or manufacture child pornography. Wieland
purchased at least some of the materials from commercial Internet sites. According to the
prosecutor's undisputed representation to the district court, the children depicted were of
varying ages and included some girls probably as young as 6 or 7 years old. Apparently
relying on the forensic examiner's report about the images found on the computer and
telephone, the prosecutor told the district court that most of the child pornography
showed girls partially or fully undressed or wearing provocative undergarments. But
some of the images showed the subjects engaging in lesbian sex, masturbation, bondage,
or sexual intercourse with adult men. The child pornography was interspersed with
pornographic images of adults. Nothing suggested Wieland redistributed any of the
pornography to other people.

At the time of sentencing, Wieland was 31 years old. He already had a felony theft
conviction when he obtained the child pornography and apparently was on pretrial release
for at least one more felony theft charge. Much of his lawyer's argument focused on
Wieland's military service. Wieland served in the Army from 2008 to 2013 with tours of
duty in Iraq and Afghanistan. According to the lawyer, Wieland has been diagnosed as
having posttraumatic stress disorder, depression, and anxiety. The lawyer suggested
Wieland may have acquired some of the child pornography while he was on military
deployment. Given those circumstances, the lawyer contended a sentence including
lifetime postrelease supervision would be "unconscionable." The lawyer also outlined the
7

restrictions that accompany lifetime postrelease supervision and the potentially harsh
consequences for any criminal conviction, even a comparatively minor property offense.

Neither side called any witnesses during the sentencing hearing. Nor did the
district court receive by agreement reports from any expert witnesses. We have no mental
health evaluation of Wieland suggesting some connection between his military service or
his diagnosed illnesses and his possession of child pornography. We, similarly, have no
information about the likelihood Wieland might reoffend by seeking out more child
pornography upon his release from prison and whether postrelease supervision entails the
sort of monitoring and restrictions that might inhibit him from reoffending.

We choose not to belabor our discussion of the first Freeman factor and conclude
the circumstances here do not suggest so gross a disproportionality that the legislative
intent and purpose in criminalizing and punishing the possession of child pornography
through lifetime postrelease supervision can be overridden as unconstitutionally cruel and
unusual. Those cases are necessarily rare and must display a disregard for fundamental
fairness of such gravity as to be intolerable to a civilized society. This is not one of those
cases.

Wieland is an adult, not a juvenile offender. And he committed other felonies
before and during his commission of these crimes. Although Wieland suffers from
diagnosed mental illnesses that presumably are related to his military service, nothing in
the record suggests those conditions made him prone to seeking out child pornography or
have somehow rendered lifetime postrelease supervision especially cruel and unusual for
him. The quantity of child pornography he obtained indicates more than an inadvertent
acquisition or "experimental" interest. The images included the rape of underage girls—
the sort of core exploitation of children the legislature meant to punish in K.S.A. 2012
Supp. 21-5510. Finally, Wieland was a commercial consumer of child pornography in
that he purchased at least some of the images, thereby contributing to the profitability of
8

those materials and encouraging their continued production. Although Wieland's
contribution to the market for child pornography was itself infinitesimal, as his lawyer
pointed out, that doesn't really mitigate his conduct. Virtually every purchaser of child
pornography could minimize his or her criminal behavior on that basis.

In short, we cannot find the sort of complete lack of connection between the
challenged punishment and the factual circumstances of this particular criminal episode
and this particular defendant necessary to establish a constitutionally suspect
disproportionality. Accordingly, the first Freeman factor cuts against Wieland.

The Kansas Supreme Court has already considered the second Freeman factor in
comparing the punitive effects of lifetime postrelease supervision to punishments
imposed for various serious crimes that carry finite terms of postrelease supervision of up
to 36 months. See State v. Mossman, 294 Kan. 901, 913, 281 P.3d 153 (2012)
(considering second-degree murder for comparison); Cameron, 294 Kan. at 892-93
(same). The court found no cause for constitutional concern in Mossman or Cameron,
especially taking into account the longer periods of incarceration imposed for the serious
crimes used for comparison. In Mossman, a man temporarily resided with a coworker and
had a continuing sexual relationship with his host's 15-year-old stepdaughter. The
teenager willingly participated in the relationship, although she could not legally consent
because of her age. Mossman received a presumptive sentence of incarceration followed
by lifetime postrelease supervision. That conclusion similarly governs here on the second
factor. Wieland received a controlling sentence of 30 months in prison on two counts of
attempted sexual exploitation of a child. Had he been convicted of intentional second-
degree murder, he would have faced a presumptive guidelines sentence calling for a term
of imprisonment between 221 and 246 months followed by 36 months of postrelease
supervision. Wieland's crime entailed trading in child pornography that included images
of young children being violently sexually abused by adults.

9

Factual comparisons among the crimes in Mossman, here, and a hypothetical
second-degree murder for purposes of assessing the constitutionality of the punishments
are necessarily somewhat abstract, since they all differ materially in their particulars.
Nonetheless, as we have said, the result in Mossman guides the assessment of the second
Freeman factor here and similarly suggests the factor weighs against a constitutional
violation.

As to the third Freeman factor, Wieland has surveyed other jurisdictions and
represents that five other states impose some manner of lifetime postrelease supervision
on defendants convicted of offenses involving child pornography. But, he contends, only
Kansas imposes irrevocable lifetime postrelease supervision for the attempted possession
of child pornography. The State does not dispute Wieland's general assessment. Wieland
identifies Louisiana, Montana, Nebraska, Nevada, and New Jersey for comparison. He
points out Louisiana, Nevada, and New Jersey permit convicted sex offenders to petition
for release from postrelease supervision. La. Rev. Stat. Ann. § 15:561.2 (2012) (requiring
lifetime postrelease supervision of offender if victim was under 13 years old and allowing
offender to petition court for termination of supervision); N.J. Stat. Ann. § 2C:43-6.4(c)
(2016) (allowing defendant to petition the court for release from lifetime postrelease
supervision); Nev. Rev. Stat. § 176.0931(3) (2015) (allowing the defendant to petition for
release from lifetime supervision, and stating that the petition "shall" be granted if certain
requirements are fulfilled). Montana imposes mandatory lifetime postrelease supervision
for possession of child pornography but not for an attempt to possess. Mont. Code Ann. §
45-5-625(1)(e) (2015) (classifying knowingly possessing child pornography as sexual
abuse of children). And Nebraska imposes mandatory lifetime postrelease supervision on
defendants convicted of possessing child pornography with the intent to redistribute it in
some fashion. Neb. Rev. Stat. § 83-174.03(1)(a) (2014) (imposing lifetime postrelease
supervision of defendants convicted of attempting to possess or possessing child
pornography under Neb. Rev. Stat. § 29-4003[1][a][i][I], [N]) (2016); § 28-1463.05
(criminalizing knowingly possessing child pornograph with the "intent to rent, sell,
10

deliver, distribute, trade, or provide" it to another); § 28-1463.03 (criminalizing many
aspects of transferring and creating child pornography but not simple possession). We
have not surveyed the remaining states.

Based on the argument the parties have framed, Kansas appears to impose the
most severe postrelease supervision for attempted possession of child pornography,
although the comparison is essentially based on the duration of supervision rather than
the attendant restrictions or the consequences for a violation. But even at that, Kansas
isn't a complete outlier. In any state-by-state comparison, some state tops the list and
some state is at the bottom. When it comes to criminal sentences, that doesn't mean the
state with the harshest punishment necessarily has committed a constitutional violation.
Or here, since that appears to be Kansas, the punishment runs afoul of the third Freeman
factor. Even if we assume the third factor favors Wieland, his claim under § 9 fails. The
first and second factors are far more significant in determining whether the Kansas
Constitution has been violated, since they deal with the circumstances of the case and the
intent of the Kansas Legislature in fixing criminal penalties. How Kansas fares against
other states and their legislative approaches to sentencing criminals presents a less
compelling criterion for establishing a violation of § 9.

Accordingly, we reject Wieland's argument that his sentence violates the Kansas
Constitution's prohibition on cruel or unusual punishment. The conclusion, as a practical
matter, also forecloses Wieland's as-applied challenge under the Eighth Amendment,
since the standards mirror those in Freeman, although they are applied slightly
differently. What amounts to the first Freeman factor must strongly indicate a
constitutionally disproportionate sentence before a court undertakes the intrastate
comparison of punishments for other crimes and the interstate comparison of
punishments for the same offense. Graham v. Florida, 560 U.S. 48, 59-61, 130 S. Ct.
2011, 176 L. Ed. 2d 825 (2010). Wieland's federal claim technically fails because he
cannot show a gross disproportionality of lifetime postrelease supervision as punishment
11

based on his individual circumstances and the facts underlying his conviction. Even if we
extended our review to the intrastate and interstate sentencing comparisons, the federal
claim would still fail for the reasons we have already explained.

Categorical Challenges

In making a categorical challenge under the Eighth Amendment, a criminal
defendant argues a punishment to be so severe for the offense or for a broad class of
offenders as to be constitutionally unacceptable in every instance. Graham, 560 U.S. at
60-61; State v. Williams, 298 Kan. 1075, 1086, 319 P.3d 528 (2014); Mossman, 294 Kan.
at 927-28. 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 whether a "national consensus" would preclude
the punishment and whether the punishment fails to comport with a reasoned judicial
application of the Eighth Amendment. Graham, 560 U.S. at 61; Mossman, 294 Kan. at
929. We presume a categorical challenge may be brought under § 9 of the Kansas
Constitution Bill of Rights and further presume the criteria and method of analysis would
be the same as for an Eighth Amendment challenge. See Kleypas, 305 Kan. at 339.

A categorical challenge presents a question of law and is reviewed on appeal
without deference to the district court's ruling. Dull, 302 Kan. at 40.

In Williams, the court rejected a categorical Eighth Amendment challenge to
lifetime postrelease supervision as part of a sentence for possession of child pornography.
298 Kan. at 1090. Obviously, that determination informs our decision here. We are left to
examine whether an attempted possession of child pornography may be meaningfully
distinguished from the completed crime, so as to warrant a different Eighth Amendment
outcome.

12

Under Kansas law, an attempt entails "an overt act" by a person harboring the
intent to commit a particular crime but who fails in its commission or "is prevented or
intercepted" in carrying out the crime. K.S.A. 2015 Supp. 21-5301(a). There are a
number of ways a person might fail in acquiring child pornography, leading to a charge
for attempted possession. Law enforcement officers might intercede and stop the
transaction after the defendant has requested the offending materials but before they have
been delivered. Or the materials might actually depict youthful looking adults falsely
represented to be less than 18 years old—a form of legal impossibility punishable under
the Kansas attempt statute. See K.S.A. 2015 Supp. 21-5301(b). In a categorical challenge,
we are unconcerned about the particular reason the crime may have failed in a given
defendant's case and ask whether the challenged punishment would be constitutionally
permissible for some form of attempt. The required framing of the issue inures to
Wieland's benefit. If we were to consider the factual circumstances of his case, the
attempt would be revealed as an agreed-upon legal fiction to facilitate a plea, as we have
said. Arguably, Williams should control if the specific facts here defined the categorical
challenge.

Similarly, in reviewing a categorical challenge, we do not consider the particular
type of child pornography the defendant sought to acquire. While all child pornography is
deleterious, some is distinctly more pernicious. Again, a categorical challenge would
require a judicial determination that the disputed punishment be constitutionally cruel and
unusual even for the most pernicious child pornography. Especially in light of Williams,
we cannot take that step.

A defendant who attempts to possess child pornography, by definition, has the
requisite bad intent or mens rea for the completed crime. So, to that extent, the defendant
is indistinguishable from the defendant guilty of the completed offense. Typically, a
defendant guilty of only an attempt faces a shorter presumptive period of imprisonment
because the harm associated with the completed crime has not come to pass. And our
13

criminal justice system does not punish bad intent unless it is coupled with direct actions
prompted by that intent. If the actions fall short of a completed crime, we usually treat the
resulting circumstance as less criminally blameworthy and, hence, deserving of a
commensurately less severe punishment. That is true even though the failure may be
attributable to fortuity—a law enforcement officer just happened by to intercept someone
wearing a bandana mask entering a liquor store with pistol in hand—or ineptitude—
someone gets caught trying to break into that same liquor store after hours, despite the
sign warning of the silent alarm system.

Here, Wieland received the sentencing benefit commonly extended to defendants
convicted of attempts in that his presumptive term of imprisonment was shorter than it
would have been had he been convicted of the completed crime. Postrelease supervision
operates in conjunction with incarceration and serves the same overall penological
objectives of retribution, deterrence, incapacitation, and rehabilitation. Mossman, 294
Kan. at 912. But postrelease supervision focuses more directly on rehabilitation and
deterrence. The required period of postrelease supervision, therefore, links to the nature
of the crime and the motive and intent that may have prompted it. In Williams, the court
determined lifetime postrelease supervision to be constitutionally permissible as a
categorical component of punishment for persons convicted of possession of child
pornography because as a class they may be at an especially high risk to repeat the
offense. 298 Kan. at 1089. In turn, long-term monitoring of the kind imposed through
postrelease supervision may inhibit them from reoffending, thereby promoting their own
welfare and protecting society. 298 Kan. at 1089.

Assuming the accuracy of those premises, as we must in light of Williams, they are
equally applicable to defendants convicted of attempted possession of child pornography
when viewed as a class. That is, those defendants are equally susceptible to compelling
internal and external pressures to again seek out those illicit materials. As we have
indicated, nothing in the record in this case suggests otherwise. In turn, Wieland's
14

categorical challenges to lifetime postrelease supervision under the Eighth Amendment
and § 9 fail for the same reasons the categorical challenge to the completed offense did in
Williams.

Finding no constitutional infirmity, we, therefore, affirm the sentence the district
court imposed on Wieland.