State v. Mossman

• Citation: 281 P.3d 153,294 Kan. 901
• Decision Date: 27 July 2012
• Docket Number: No. 103,111.,103,111.
• Parties: STATE of Kansas, Appellee, v. James A. MOSSMAN, Appellant.
• Court: Kansas Supreme Court

294 Kan. 901
281 P.3d 153

STATE of Kansas, Appellee,
v.
James A. MOSSMAN, Appellant.

No. 103,111.

Supreme Court of Kansas.

July 27, 2012.

[281 P.3d 155]

Syllabus by the Court

1. A district court must make both legal and factual determinations when deciding whether a sentence is cruel or unusual under § 9 of the Kansas Constitution Bill of Rights. When a district court's decision is appealed, an appellate court applies a bifurcated standard of review: All of the evidence is reviewed, but not reweighed, to determine if there is sufficient support for the district court's factual findings, and the district court's legal conclusions drawn from those facts are reviewed de novo.

2. Both a district court making the initial determination regarding whether a statute is constitutional and an appellate court conducting a review of that determination are required by the separation of powers doctrine to presume the statute is constitutional. Consistent with this presumption, if there is any reasonable way to construe a statute as constitutional, courts have the duty to do so by resolving all doubts in favor of constitutionality.

3. A claim that a criminal defendant's sentence of lifetime postrelease supervision is cruel or unusual punishment is ripe for decision at sentencing and in a direct appeal of the sentence. Even though the supervision will not begin until sometime in the future after the defendant has completed a term of imprisonment and no one knows exactly what conditions will be imposed on the defendant at that time, the claim is ripe because the postrelease supervision term is part of the

[281 P.3d 156]

sentencing judgment and it is known that the defendant's rights and liberties will be restricted in some manner.

4. The three-part test stated in State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978), applies to a determination of whether a sentence of lifetime postrelease supervision under K.S.A. 22–3717(d)(1)(G) is cruel or unusual punishment under § 9 of the Kansas Constitution Bill of Rights.

5. Under the facts of this case, a defendant's sentence of lifetime postrelease supervision under K.S.A. 22–3717(d)(1)(G) for the crime of aggravated indecent liberties with a child is not cruel or unusual punishment under § 9 of the Kansas Constitution Bill of Rights; in other words, the punishment 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 Kansas and other jurisdictions, especially given that the sentence is not grossly disproportionate.

6. Two general classifications apply to an attack on a term-of-years sentence brought under the cruel and unusual punishment provision of the Eighth Amendment to the United States Constitution. The first category involves challenges to the length of term-of-years sentences given all the circumstances in a particular case. The second involves categorical challenges to the punishment based on the nature of the offense or on a characteristic shared by a class of offenders.

7. 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 of lifetime postrelease supervision under K.S.A. 22–3717(d)(1)(G) for a conviction of aggravated indecent liberties with a child is not cruel and unusual punishment.

8. A categorical analysis under the Eighth Amendment to the United States Constitution does not require a review of the district court's factual findings. Instead, only questions of law are implicated. An appellate court has unlimited review over legal questions.

9. A sentence of lifetime postrelease supervision under K.S.A. 22–3717(d)(1)(G) for a conviction of aggravated indecent liberties with a child is not categorically disproportionate even as to first-time sex offenders and, therefore, is not cruel and unusual punishment under the Eighth Amendment to the United States Constitution.

Matthew J. Edge, of Kansas Appellate Defender Office, argued the cause and was 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.:

James A. Mossman appeals from the imposition of lifetime postrelease supervision following his conviction of aggravated indecent liberties with a child. He contends lifetime postrelease supervision constitutes cruel and/or unusual punishment and violates § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution. We reject Mossman's arguments, concluding the sentence is not disproportionate to the seriousness of his 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. Consequently, we affirm his sentence.

Facts and Procedural Background

Mossman entered a no contest plea to one count of aggravated indecent liberties with a child, in violation of K.S.A. 21–3504(a)(1), a

[281 P.3d 157]

severity level 3 person felony, and one count of possession of cocaine, in violation of K.S.A. 65–4160(a), a drug severity level 4 felony. At the plea hearing, the State offered the following factual basis for the count of aggravated indecent liberties. In the fall of 2008, Mossman, who was 25 years of age, moved in with the family of the 15–year–old victim. The victim's stepfather was Mossman's friend and coworker and “allowed” Mossman to stay with the family. The victim disclosed in a SafeTalk interview that, “beginning on December 10th of 2008 and for sometime thereafter, she had a sexual relationship with the defendant, including penile/vaginal intercourse.” Based on this factual proffer and after determining Mossman's plea was knowingly and voluntarily made, the district court accepted Mossman's plea and found him guilty.

Prior to sentencing, Mossman filed two motions. In one, he requested a dispositional departure. In the second, he argued that the imposition of lifetime postrelease supervision, which is statutorily mandated for a conviction of aggravated indecent liberties under K.S.A. 22–3717(d)(1)(G), is disproportionate and, therefore, cruel and/or unusual punishment prohibited by § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution.

Mossman's constitutional argument was based on the statutory scheme that governs lifetime postrelease supervision and its corresponding conditions. He contended the mandatory nature of the sentence, the restrictions that accompany the supervision, and the potential for being reimprisoned for life if conditions are violated make the sentence unconstitutional. To support these arguments, Mossman 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 liberties with a child, one of Mossman's crimes of conviction in this case. See K.S.A. 22–3717(d)(2)(C).

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, Mossman, 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, Mossman argued in his motion, make the sentence disproportionate.

The district court conducted an evidentiary hearing on Mossman's motions at which Mossman presented the expert testimony of Dr. Mitchell Flesher, who was both a psychologist with the Kansas Department of Corrections and a private practitioner. Dr. Flesher testified he routinely performs “risk assessment evaluations for inmates who are being considered under the Sexually Violent Predator Act or those inmates who are being considered for parole” and had performed an assessment of Mossman. Although Dr. Flesher found some assessment factors were in Mossman's favor, he recommended Mossman participate in sexual offender and drug abuse treatment programs. After considering the evidence and the arguments of counsel, the district court applied the three-part test...