State Of Kan. v. Gomez
| Decision Date | 09 July 2010 |
| Docket Number | No. 101,213.,101 |
| Citation | 235 P.3d 1203 |
| Parties | STATE of Kansas, Appellee,v.Alejandro GOMEZ, Appellant. |
| Court | Kansas Supreme Court |
COPYRIGHT MATERIAL OMITTED
Syllabus by the Court
1. Generally, constitutional issues cannot be raised for the first time on appeal.
2. There are three exceptions to the general rule that constitutional issues cannot be raised for the first time on appeal: (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.
3. The concept of proportionality is central to the Eighth Amendment to the United States Constitution. Embodied in the Eighth Amendment's ban on cruel and unusual punishments is the precept that punishment for a crime should be graduated and proportioned to the offense.
4. An Eighth Amendment challenge to a term-of-years sentence as disproportionate and therefore cruel and unusual falls into one of two general classifications. The first classification involves challenges that argue the term of years is grossly disproportionate given all the circumstances in a particular case. The second classification comprises cases in which the court implements the proportionality standard by certain categorical restrictions.
5. In conducting an Eighth Amendment analysis to determine whether a sentence for a term of years is grossly disproportionate for a particular defendant's crime, a court must begin by comparing the gravity of the offense and the severity of the sentence. This analysis can consider a particular 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, and a particular offender's propensity for violence. In the rare case in which this threshold comparison leads to an inference of gross disproportionality, the court should then compare the defendant's sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions. If this comparative analysis validates an initial judgment that the sentence is grossly disproportionate, the sentence is cruel and unusual.
6. An Eighth Amendment challenge that the length of a term-of-years sentence is disproportionate given all the circumstances in a particular case is a case-specific challenge and is inherently factual. Because appellate courts do not make factual findings but review those made by district courts, such a challenge must be raised in the district court and a defendant must obtain the necessary findings of fact in the district court in order to preserve the issue for appellate review.
7. In limited circumstances, a categorical analysis may apply to an Eighth Amendment cruel and unusual challenge. In considering a categorical challenge, a 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 United States Constitution. The judicial exercise of independent judgment requires consideration of the culpability of the category of offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question. In this inquiry the court also considers whether the challenged sentencing practice serves legitimate penological goals of retribution, deterrence, incapacitation, and rehabilitation.
8. To preserve an issue for appellate review, a party must do more than incidentally raise the issue in an appellate brief. The party must present an argument and support that argument with pertinent authority or show why the argument is sound despite a lack of supporting authority or in the face of contrary authority. Otherwise, the argument will be deemed abandoned.
9. Under § 9 of the Kansas Constitution Bill of Rights, a 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. A three-part test is utilized to administer this principle: (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.
10. The three-part test to be applied to a disproportionality challenge based on § 9 of the Kansas Constitution Bill of Rights includes both legal and factual inquiries and no single factor controls the outcome.
11. An argument that a sentence violates § 9 of the Kansas Constitution Bill of Rights because it is cruel or unusual cannot be raised for the first time on appeal.
Matthew J. Edge, of Kansas Appellate Defender Office, was on the brief for appellant.
David Lowden, chief attorney, appellate division, Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, were on the brief for appellee.
Alejandro Gomez pleaded guilty to one count of aggravated indecent liberties with a child under the age of 14, in violation of K.S.A. 2006 Supp. 21-3504(a)(3). The district court denied his motion for a durational departure sentence and sentenced him to life in prison with a mandatory minimum sentence of 25 years under K.S.A. 2006 Supp. 21-4643(a)(1)(C), commonly known as Jessica's Law. The district court also imposed post release supervision for life pursuant to K.S.A. 2006 Supp. 22-3717(d)(1)(G), (d) (2)(C).
For the first time on appeal, Gomez challenges his sentence as a cruel and/or unusual punishment under the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights, arguing the sentence is disproportionate. In response, the State argues Gomez is not entitled to a proportionality review under the Eighth Amendment and his failure to make a specific objection and to present a basis for his challenge while in the district court is fatal to his request for review on the merits. We reject the State's argument that a proportionality challenge is not allowed under the Eighth Amendment in light of the recent decision in Graham v. Florida, 560 U.S. ----, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), which was decided after this case was submitted to this court. However, we agree with the State's argument that Gomez' failure to preserve the issues precludes our review.
Under the plea agreement, Gomez was free to seek a durational departure sentence, but the State could oppose such a request. There was no indication in the plea agreement that Gomez would argue the unconstitutionality of the life sentence.
As permitted under the agreement, Gomez filed a motion for a sentencing departure based on several alleged factors, including his accepting responsibility for the crime, his cooperation with law enforcement during the investigation, his remorse, his lack of criminal history, his risk of being deported, and an evaluation, not included in the record on appeal, indicating Gomez' “low risk” of recidivism and the absence of “danger to the public.” After considering the mitigating factors presented by Gomez, the district court denied his motion for a durational departure sentence, finding no substantial and compelling reason to depart from the minimum statutory sentence.
Gomez did not raise a cruel and unusual punishment argument in his motion for departure or in his oral arguments at the sentencing hearing. Nor did he ask for findings relating to the cruel and unusual nature of the sentence.
Gomez filed a timely appeal. This court's jurisdiction is under K.S.A. 22-3601(b)(1) ().
Gomez does not separately analyze his claims that his life sentence imposed upon him under K.S.A. 2006 Supp. 21-4643(a)(1)(C) violates the constitutional prohibition against cruel and unusual punishment found in the Eighth Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment, and against cruel or unusual punishment found in § 9 of the Kansas Constitution Bill of Rights. Nevertheless, the State appropriately separates the analysis, and we will as well.
There is, however, a threshold question that applies to both the federal and state constitutional issues: Can Gomez' cruel and unusual punishment arguments be considered for the first time on appeal? This court has held, in general, that constitutional issues cannot be raised for the first time on appeal. State v. Ortega-Cadelan, 287 Kan. 157, 159, 194 P.3d 1195 (2008). Three exceptions to the general rule (hereinafter referred to as Pierce exceptions) have been recognized, however. They are: “(1) The newly asserted claim involves only a question of law arising on proved or admitted facts and...
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