State v. Floyd

• Decision Date: 15 February 2013
• Docket Number: No. 106,056.,106,056.
• Citation: 294 P.3d 318
• Parties: STATE of Kansas, Appellee, v. Timothy L. FLOYD, Appellant.
• Court: Kansas Supreme Court

294 P.3d 318

STATE of Kansas, Appellee,

v.Timothy L. FLOYD, Appellant.

No. 106,056.

Supreme Court of Kansas.

Feb. 15, 2013.

Syllabus by the Court

1. The standard of review on denial of a sentencing departure is abuse of discretion.

2. Judicial discretion is abused if judicial action is: (a) arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (b) based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (c) based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.

3. The mitigating circumstances listed in K.S.A. 21–4643(d) do not constitute per se substantial and compelling reasons for a departure sentence.

4. Constitutional claims must be preserved for appeal by advancement and argument in the district court. Whether a sentence constitutes cruel and/or unusual punishment prohibited by the Eighth Amendment to the United States Constitution or § 9 of the Kansas Constitution Bill of Rights cannot be considered for the first time on appeal. The parties must develop a record on the issue, and the district court must make factual findings.

5. An inmate who has received an off-grid indeterminate life sentence can leave prison only if the successor to the Kansas Parole Board grants the inmate parole. Therefore, a sentencing court has no authority to order a term of postrelease supervision in conjunction with an off-grid indeterminate life sentence.

Ryan Eddinger, of Kansas Appellate Defender Office, was on the brief for appellant.

Chadwick J. Taylor, district attorney, Natalie Chalmers, assistant district attorney, and Derek Schmidt, attorney general, were the brief for appellee.

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

Timothy L. Floyd directly appeals his hard 25 life-imprisonment sentence for Jessica's Law crimes. After pleading guilty to 26 counts of sexual exploitation of a child, he filed a downward durational departure motion, asking the sentencing court to depart from the presumptive prison term based on seven mitigating factors. The district court denied the motion after finding those factors were not substantial and compelling. Floyd now appeals the denial of his motion, adding to his appeal an unpreserved argument concerning cruel and/or unusual punishment. With the exception of vacating a portion of Floyd's sentence imposing lifetime postrelease supervision, we affirm his hard 25 life sentence.

Factual and Procedural Background

Floyd pled guilty to 26 counts of sexual exploitation of a child in violation of K.S.A. 21–3516(a)(5). His plea was based on his actions of having videos of a sexual nature, which included some focusing on his 5–year–old niece's genitalia as well as showing other children engaging in oral and anal sex with adult men and animals. In total, Floyd possessed approximately 750 videos and thousands of still images of child pornography.

Before sentencing, Floyd filed a downward durational and/or dispositional departure motion, asking the court to depart from the presumptive prison term because he: (1) had no criminal history; (2) showed remorse for his actions and his family supports rehabilitation and welcomes him home; (3) was the financial backbone of his family, providing for his wife and children; (4) was suffering emotional problems and engaging in drug abuse when his crimes occurred, but wanted to change his course in life and complete treatment; (5) was father to a young son and hoped to be part of his life growing up; (6) was honorably discharged from the United States Air Force; and (7) was released from jail shortly after being arrested but “did not try to avoid further arrest and incarcerations.”

The district court considered each mitigating factor at the sentencing hearing and denied the motion. The court found the reasons were not substantial and compelling, individually or collectively, to justify departure. Floyd was sentenced to a hard 25 life-imprisonment sentence, but the court did use the mitigating factors listed in the departure motion to order the sentences to run concurrently rather than consecutively. Floyd filed a timely notice of appeal. This court's jurisdiction is proper under K.S.A. 22–3601(b)(1) (off-grid crime; life sentence).

Departure Motion

Floyd claims the district court erred in denying his departure motion because he presented substantial and compelling factors supporting a departure from the presumptive life sentence. This court employs an abuse of discretion standard when reviewing a district court's decision on a departure motion. State v. Baptist, 294 Kan. 728, 735, 280 P.3d 210 (2012). Abuse of discretion occurs when judicial action:

“ ‘(1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.’ ” Baptist, 294 Kan. at 735, 280 P.3d 210 (quoting State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 [2011],cert. denied––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012)).

The district court is required only to state on the record substantial and compelling reasons if it decides to grant a departure. Baptist, 294 Kan. at 735, 280 P.3d 210 (citing K.S.A. 21–4643[d] ).

Convictions for sexual exploitation of a child trigger a minimum 25–year life sentence imposed by Jessica's Law, codified by statute under K.S.A. 21–4643(a)(1)(F). For first time offenders, a sentencing court must impose the life sentence “unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure.” K.S.A. 21–4643(d).

Mitigating circumstances a sentencing court may consider include, but are not limited to: (1) the defendant's lack of significant criminal history; (2) whether the crime was committed while the defendant was under the influence of extreme mental or emotional disturbances; (3) whether the victim was an accomplice in the crime committed by another person, and the defendant's participation was relatively minor; (4) whether the defendant acted under extreme distress or under the substantial domination of another person; (5) the capacity of the defendant to appreciate the criminality of the defendant's conduct or to conform the defendant's conduct to the requirements of law was substantially impaired; and (6) the age of the defendant at the time of the crime. K.S.A. 21–4643(d)(1).

Whether a mitigating factor is “ ‘substantial’ ” depends on whether it is “something that is real, not imagined; something with substance and not ephemeral,” while ... “ ‘compelling’ implies the court is forced, by the facts of a case, to leave the status quo or go beyond what is ordinary.' ” State v. Seward, 289 Kan. 715, 722, 217 P.3d 443 (2011) (quoting State v. McKay, 271 Kan. 725, 728, 26 P.3d 58 [2001] ). But mitigating circumstances do not per se constitute substantial and compelling reasons for departure. State v. Ortega–Cadelan, 287 Kan. 157, 165, 194 P.3d 1195 (2008).

The district court considered each factor in Floyd's motion and found they were not substantial and compelling either individually or collectively. It said that while Floyd was not himself involved with sexually abusing the children depicted in the pornography found in his possession, “it is indicated that he knowingly and willingly took part in allowing and promoting a terrible industry that involves such brutality. It is reprehensible. It is unspeakable. Our most innocent and vulnerable are victimized by such an industry. Our children look to adults for protection and nurture, not this.”

But the district court did consider the mitigating factors in Floyd's departure motion in its decision ordering the sentences to run concurrently rather than consecutively.

Floyd argues on appeal the circumstances he listed were substantial and compelling, particularly the factor that he voluntarily returned to custody for sentencing after being inadvertently released from jail. He also claims he expressed remorse and a desire for rehabilitation and notes the district court heard testimony from a defense expert who testified Floyd was not an extreme recidivism risk and was amenable to treatment. He argues the factors as a whole were substantial and compelling reasons to depart and that the district court erred in disregarding the unique features of his case. The State responds that Floyd had in his possession a number of items it characterized as “morally reprehensible child pornography” and that none of Floyd's listed mitigating factors are sufficient to overcome the “appalling and unconscionable nature of his...