State v. Cameron

• Decision Date: 27 July 2012
• Docket Number: No. 103,093.,103,093.
• Citation: 281 P.3d 143,294 Kan. 884
• Parties: STATE of Kansas, Appellee, v. Andray S. CAMERON, Appellant.
• Court: Kansas Supreme Court

294 Kan. 884

281 P.3d 143

STATE of Kansas, Appellee,

v.Andray S. CAMERON, Appellant.

No. 103,093.

Supreme Court of Kansas.

July 27, 2012.

Syllabus by the Court

1. Under the facts of this case, a defendant's sentence of lifetime postrelease supervision under K.S.A. 22–3717(d)(1)(G) for three counts of aggravated indecent solicitation of a child is not cruel or unusual punishment under § 9 of the Kansas Constitution Bill of Rights; in other words, the punishment it is not so disproportionate to the crime that it shocks the conscience and offends fundamental notions of human dignity. Factors leading to this conclusion include: the nature of the offense, which is serious and is a sex crime against a minor that historically has been treated as a forcible or violent felony regardless of whether there is physical force; the defendant's characteristics; and the penological goals of postrelease supervision, which include retribution, deterrence, incapacitation, and rehabilitation. These factors outweigh the lack of strict proportionality with other sentences in Kansasand other jurisdictions, especially given that the sentence is not grossly disproportionate.

2. Applying the factors related to a case-specific proportionality challenge that a sentence is cruel and unusual punishment under the Eighth Amendment to the United States Constitution, the sentence in this case to lifetime postrelease supervision under K.S.A. 22–3717(d)(1)(G) for three convictions of aggravated indecent solicitation of a child is not cruel and unusual punishment.

3. A sentence of lifetime postrelease supervision under K.S.A. 22–3717(d)(1)(G) for three counts of aggravated indecent solicitation of a child is not categorically disproportionate and, therefore, is not cruel and unusual punishment under the Eighth Amendment to the United States Constitution.

4. When the provisions of K.S.A. 22–3717(d)(1) are examined in pari materia with a view of reconciling and bringing the provisions into workable harmony, there is no reasonable doubt that the legislature intended the more specific and more severe provision of (d)(1)(G) to apply to sexually violent offenses rather than the more general provision of (d)(1)(B). This means that an offender convicted of a “sexually violent crime” committed after July 1, 2006, must be sentenced to receive lifetime postrelease supervision upon release from prison.

Rachel L. Pickering, of Kansas Appellate Defender Office, argued the cause, and Theresa L. Barr, of the same office, was with her on the briefs for appellant.

Natalie A. Chalmers, assistant district attorney, argued the cause, and Chadwick J. Taylor, district attorney, and Steve Six, attorney general, were with her on the briefs for appellee.

The opinion of the court was delivered by LUCKERT, J.:

As required by K.S.A. 22–3717(d)(1)(G), the district court in this case sentenced Andray S. Cameron, in part, to lifetime postrelease supervision for his convictions of three counts of aggravated indecent solicitation of a child. On appeal, Cameron argues his sentence to lifetime postrelease supervision is a disproportionate and cruel and/or unusual punishment that violates § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution. Cameron also argues the district court erred by not recognizing the court had the discretion to sentence him to a shorter postrelease supervision term of 24 months under a different statutory subsection, K.S.A. 22–3717(d)(1)(B).

We reject Cameron's arguments regarding the constitutionality of his sentence, concluding the lifetime postrelease supervision sentence is not disproportionate to the seriousness of Cameron's crime, is not grossly disproportionate to the sentences imposed for other crimes in Kansas or similar crimes in other states, and is not categorically unconstitutional. We also reject his argument that the district court had discretion to sentence him to a postrelease supervision term of 24 months, finding there is no reasonable doubt that the Kansas Legislature intended the more severe penalty of lifetime postrelease supervision must be imposed when a defendant is sentenced for a sexually violent crime. Consequently, we affirm Cameron's sentence.

Facts and Procedural Background

Cameron pleaded guilty to three counts of aggravated indecent solicitation of a child, in violation of K.S.A. 21–3511(a), a severity level 5 person felony. A person commits aggravated indecent solicitation of a child by “[e]nticing or soliciting a child under the age of 14 years to commit or to submit to an unlawful sexual act.” K.S.A. 21–3511(a).

Under the facts of this case, 45–year–old Cameron was married to the victim's biological grandmother, making him the stepgrandfather of the 12–year–old female victim. According to the factual statement offered by the State as the basis for the plea, Cameron's wife was “raising” the victim at the time of the incident. The State proffered that the victim told her grandmother that Cameron “put his thing up and down on her butt, soliciting her to engage in acts of an unlawful sexual nature, those acts being—act of sexual intercourse, and an act of criminal sodomy, and an act of lewd fondling of [the victim.]” The State also proffered that Cameron admitted to police that he had been drinking heavily. Cameron, after initially denying the allegations, in a second interview “confessed to waking up with an erect penis and pressing that against the back side of [the victim] and soliciting her for the sex acts described previously.” The district court accepted Cameron's plea and found him guilty of three counts of aggravated indecent solicitation involving enticement to commit or submit to sexual intercourse, sodomy, and lewd fondling or touching.

As part of the plea agreement, it was agreed that Cameron would be sentenced to 24 months' postrelease supervision. The district court determined, however, it could not follow the plea agreement because K.S.A. 22–3717(d)(1)(G) expressly mandates lifetime postrelease supervision for sexually violent offenders; Cameron's offense meant he fell within the mandate. The court offered Cameron the opportunity to withdraw his guilty plea, but Cameron decided not to withdraw his plea and instead chose to ask that the plea agreement be enforced. Cameron also filed a motion requesting a downward departure from lifetime postrelease supervision and a motion arguing lifetime postrelease supervision was cruel and/or unusual punishment under the Kansas Constitution and the United States Constitution. Cameron's motion was essentially the same as that of the defendant in State v. Mossman, 294Kan. 901, 281 P.3d 153 (2012) (this day decided), who was represented by the same trial counsel.

Specifically, Cameron noted that K.S.A. 22–3717(d)(1)(G) provides that an individual convicted of a sexually violent crime committed on or after July 1, 2006, who is released from prison “shall be released to a mandatory period of postrelease supervision for the duration of the person's natural life.” An individual sentenced to lifetime imprisonment under K.S.A. 21–4643 is excepted from this requirement. Included in the definition of sexually violent crimes is the crime of aggravated indecent solicitation of a child, Cameron's crime of conviction in all three counts in this case. See K.S.A. 22–3717(d)(2)(G).

Mandatory lifetime postrelease supervision includes a general requirement that the person cannot commit a new criminal offense and may include several other specific “conditions targeted toward facilitating rehabilitation, restitution, and safe reintegration into society. [Citation omitted.]” State v. Gaudina, 284 Kan. 354, 359, 160 P.3d 854 (2007). These conditions may include payment of costs, fines, and restitution; completing educational requirements; performing community service; reporting to a supervising officer; and abiding by other special conditions allowed by administrative regulations and orders. K.S.A. 21–4703(p) (defining “postrelease supervision”); K.S.A. 22–3717(m) (listing possible conditions). In addition to discussing these general conditions, Cameron, in his motion, stressed the potential of life in prison if he violates his postrelease conditions by committing a new felony. See K.S.A. 75–5217(c) (“upon revocation [of postrelease supervision], the inmate shall serve the entire remaining balance of the period of postrelease supervision”). Both the restrictions that accompany lifetime postrelease supervision and the potential for life in prison, Cameron argued in his motion, makes the sentence disproportionate.

At sentencing, the district court denied Cameron's motion for a sentencing departure. In addition, citing State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), the district court rejected Cameron's contention that lifetime postrelease supervision is unconstitutional.

On appeal, Cameron renews his argument that lifetime postrelease supervision constitutes cruel and/or unusual punishment under § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution. Although in this appeal, Cameron has different counsel than Mossman's appellate counsel, Cameron's arguments are very similar to those asserted by Mossman. However, Cameron does make the additional argument that the district court had the discretion to sentence him to a shorter postrelease supervision term under a different statutory provision.

This court transferred Cameron's case from the Court of Appeals pursuant to K.S.A. 20–3018(c) (transfer on court's own motion), along with Mossman's appeal. At the time of the transfer and in light of Cameron's challenge under the Eighth Amendment's ban on cruel and unusual punishment, this court directed the parties to file “supplemental briefs addressing whether the categorical analysis set out in Graham v. Florida, 560 U.S. ––––, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), which was...