State v. Dull
| Decision Date | 05 June 2015 |
| Docket Number | 106,437. |
| Citation | 302 Kan. 32,351 P.3d 641 |
| Parties | STATE of Kansas, Appellee, v. Bryce M. DULL, Appellant. |
| Court | Kansas Supreme Court |
Joanna Labastida, of Kansas Appellate Defender Office, argued the cause and was on the briefs, for appellant.
David Lowden, chief attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, were with him on the brief, for appellee.
Bryce Dull appeals the consecutive sentences he received in two unrelated cases. In the first case filed, Dull pleaded guilty to burglary and misdemeanor theft. He had recently turned 18 years old when these crimes were committed. In the other case, Dull pleaded guilty to aggravated indecent liberties with a child. Dull was 17 years old at the time of this crime, and the victim was 13 years old. However, the district court authorized Dull to be prosecuted as an adult, and the cases were consolidated for pleas and sentencings. He was sentenced to 24 months' imprisonment for the burglary, concurrent with 12 months' incarceration for the theft, and 45 months' imprisonment for the sex crime. The sentences were ordered to be served consecutive to each other. As required by statute for the aggravated indecent liberties conviction, the district court also sentenced Dull to a lifetime of supervision by the Department of Corrections once he was released from prison.
Dull seeks review of the Court of Appeals' decision that mandatory lifetime postrelease supervision for juveniles convicted of similar sex offenses does not categorically constitute cruel and/or unusual punishment under the Eighth Amendment to the United States Constitution. See State v. Dull, No. 106,437, ––– Kan.App.2d ––––, 2013 WL 193036, at *12 (Kan.App.2013) (unpublished opinion). Although he argues mandatory lifetime postrelease supervision is likewise unconstitutional under § 9 of the Kansas Constitution Bill of Rights, he does not challenge the panel's holding that this issue was not properly raised for the first time on appeal. He additionally takes issue with the imposition of consecutive sentences in his two cases.
For reasons set forth below, we reverse and hold that mandatory lifetime postrelease supervision for juveniles who have committed and are later convicted of aggravated indecent liberties categorically constitutes cruel and unusual punishment. We also reverse the panel's holding that it did not have jurisdiction to consider the imposition of consecutive sentences in light of our decision in State v. Looney, 299 Kan. 903, 327 P.3d 425 (2014) ; however, we affirm the district court's imposition of consecutive sentences.
In 09CR3878, Dull was charged with burglary, a severity level 7 person felony, and misdemeanor theft. These offenses occurred on December 16, 2009, after Dull had turned 18 years old. In 10CR2224, Dull was charged with rape, a severity level 1 person felony, for having sexual intercourse with a 13–year–old girl on or between July 1, 2009, and July 31, 2009. Dull was 17 years old at the time of the alleged sex offense, but the district court authorized prosecution as an adult. The cases were consolidated, and, pursuant to a plea agreement, Dull pleaded guilty to the burglary and misdemeanor theft charges in 09CR3878 and to the amended charge of aggravated indecent liberties, a severity level 3 person felony, in 10CR2224. Dull moved for durational and dispositional departures.
In 09CR3878, the district court denied the departure motion and sentenced Dull to a standard term of 24 months' imprisonment followed by 12 months' postrelease supervision for the burglary offense and a concurrent term of 12 months in county jail for the misdemeanor theft offense. In 10CR2224, the district court granted a downward durational departure from the presumptive standard sentence of 94 months' imprisonment to 45 months' imprisonment followed by lifetime postrelease supervision. The court reasoned that Dull's mental impairment caused him to lack substantial judgment when the crime was committed and the lack of participation by the victim in the proceedings resulted in less harm to the victim than typical for such an offense. The sentences in both cases were ordered to run consecutive to one another.
Dull argues for the first time on appeal that mandatory lifetime postrelease supervision categorically constitutes cruel and/or unusual punishment under the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights when it is imposed on juveniles who have committed and are later convicted of similar sex offenses. Additionally, he challenges the district court's imposition of consecutive sentences.
In a divided opinion, the Court of Appeals considered only the categorical challenge under the Eighth Amendment. Acknowledging it was a difficult call, the majority relied primarily on State v. Mossman, 294 Kan. 901, 930, 281 P.3d 153 (2012), and State v. Cameron, 294 Kan. 884, 898, 281 P.3d 143 (2012), which held that mandatory lifetime postrelease supervision for a first-time offender adult convicted of aggravated indecent liberties with a child or aggravated indecent solicitation of a child was constitutional under the Eighth Amendment. The Mossman and Cameron courts applied the analysis set forth in Graham v. Florida, 560 U.S. 48, 66, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (). The Court of Appeals majority also applied Graham in concluding that mandatory lifetime postrelease supervision for juveniles convicted of aggravated indecent liberties does not categorically constitute cruel and unusual punishment under the Eighth Amendment. Dull, 2013 WL 193036, at *12.
Judge G. Joseph Pierron dissented reasoning that acts committed by juveniles should be viewed differently from acts committed by adults, and that the real possibility of a lifetime sentence for the later commission of a minor felony was not proportional. 2013 WL 193036, at *13 (Pierron, J., dissenting).
The Court of Appeals unanimously agreed that it lacked jurisdiction to consider a challenge to the imposition of consecutive presumptive sentences. Dull, 2013 WL 193036, at *12.
Dull petitioned for review of both issues. This court granted the petition pursuant to K.S.A. 20–3018(b) and K.S.A. 60–2101(b) ().
State v. Williams, 298 Kan. 1075, 1079, 319 P.3d 528 (2014).
Before the Court of Appeals, the State argued that Dull's categorical challenge to his lifetime postrelease supervision was a “thinly-veiled attempt to challenge his individual sentence.” Accordingly, the State argued the appellate court did not have jurisdiction to consider an appeal from a presumptive or downward departure sentence, including an individual challenge to the constitutionality of a sentence. See K.S.A. 21–4721 ; State v. Huerta, 291 Kan. 831, Syl. ¶ 3, 247 P.3d 1043 (2011) (); State v. Johnson, 286 Kan. 824, 841–42, 190 P.3d 207 (2008) (); State v. Clemons, 273 Kan. 328, 343–44, 45 P.3d 384 (2002) ().
The Court of Appeals rejected this argument, reasoning this court had not questioned jurisdiction in Mossman and had granted review and remanded two cases which had been dismissed for lack of jurisdiction. See State v. Vanskiver, No. 101,214, order of dismissal filed September 29, 2009, rev. granted and remanded September 13, 2010; and State v. Collins, No. 100,996, order of dismissal filed August 31, 2009, rev. granted and remanded June 23, 2010. Subsequently, this court determined that “a presumptive prison sentence does not render an appellate court without jurisdiction, under K.S.A. 21–4721(c)(1), to review the imposition of a lifetime postrelease supervision period.” Williams, 298 Kan. at 1080, 319 P.3d 528.
Additionally, as discussed in the second issue, Dull's sentence for aggravated indecent liberties in this case was a departure sentence and this court has jurisdiction to consider an appeal pursuant to K.S.A. 21–4721(a) (); see also State v. Looney, 299 Kan. at 908, 327 P.3d 425 (). The State chose not to cross-petition this ruling on jurisdiction, but this court has a duty to consider jurisdictional issues sua sponte. See Williams, 298 Kan. at 1080, 319 P.3d 528. Accordingly, we have jurisdiction to consider this issue.
The Court of Appeals also considered whether Dull's attempt to bring a categorical challenge to his sentence under both the Eighth Amendment and § 9 of the Kansas Constitution Bill of Rights could be raised for the first time on appeal. The panel noted three exceptions to the general rule:
Dull, 2013 WL 193036, at *2.
Applying State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010), the panel separated its analysis...
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