State v. Ortega-Cadelan

• Decision Date: 31 October 2008
• Docket Number: No. 98,713.,98,713.
• Citation: 194 P.3d 1195
• Parties: STATE of Kansas, Appellee, v. Angelo ORTEGA-CADELAN, Appellant.
• Court: Kansas Supreme Court

194 P.3d 1195

STATE of Kansas, Appellee, v. Angelo ORTEGA-CADELAN, Appellant.

No. 98,713.

Supreme Court of Kansas.

October 31, 2008.

Carl Folsom, III, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Kristi L. Barton, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Stephen N. Six, attorney general, were with her on the brief for appellee.

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

Angelo Ortega-Cadelan pled guilty to one count of rape in violation of K.S.A. 21-3502(a)(2) (sexual intercourse with child under 14 years of age). He received a mandatory life sentence without the possibility of parole for 25 years and postrelease supervision for life. Ortega-Cadelan appeals his sentence. Raising a new issue on appeal, he argues his sentence constitutes cruel or unusual punishment. In addition, he argues the district court abused its discretion by denying his motion for a downward durational departure sentence.

We affirm Ortega-Cadelan's sentence. Regarding the first issue of whether the sentence constitutes cruel or unusual punishment, we conclude the issue cannot be raised for the first time on appeal. Regarding the second issue, we conclude the sentencing court properly considered all mitigating circumstances and did not abuse its discretion when it concluded those circumstances were not substantial and compelling reasons to impose a departure sentence.

FACTS

The sentence relates to Ortega-Cadelan's conviction for committing an act of sexual intercourse with a 5-year-old child, his stepdaughter, on or between November 1, 2006, and November 27, 2006. Ortega-Cadelan pled guilty to the statutory rape charge under a plea agreement with the State, and in exchange, he was free to seek a sentencing departure. Ortega-Cadelan filed a motion requesting a durational departure sentence pursuant to K.S.A.2006 Supp. 21-4643(d), in effect at the time of the offense, and he presented arguments at the sentencing hearing. The district court, however, found none of the reasons asserted by Ortega-Cadelan in his departure motion or at the sentencing hearing were substantial and compelling reasons to depart from the mandatory minimum sentence.

Therefore, pursuant to K.S.A.2006 Supp. 21-4643(a)(1), the court sentenced Ortega-Cadelan to a mandatory life sentence without the possibility of parole for 25 years. And, pursuant to K.S.A.2006 Supp. 22-3717(d)(1)(G), the court ordered postrelease supervision for the remainder of Ortega-Cadelan's natural life.

Ortega-Cadelan raises a timely appeal of his sentence. This court has jurisdiction under K.S.A. 22-3601(b)(1) (life sentence; off-grid crime).

CRUEL OR UNUSUAL PUNISHMENT

Ortega-Cadelan concedes he did not present the constitutional issue of whether his sentence constituted cruel or unusual punishment under § 9 of the Kansas Constitution Bill of Rights to the district court. Generally, constitutional issues cannot be asserted for the first time on appeal. State v. Gaudina, 284 Kan. 354, 372, 160 P.3d 854 (2007). However, in Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858 (1967), a constitutional issue case, we recognized three exceptions to the general rule: (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. See, e.g., State v. Hawkins, 285 Kan. 842, 845, 176 P.3d 174 (2008); State v. Conley, 270 Kan. 18, 30-31, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932, 121 S.Ct. 1383, 149 L.Ed.2d 308 (2001); State v. Puckett, 230 Kan. 596, 598-99, 640 P.2d 1198 (1982); but cf. State v. Snow, 282 Kan. 323, 342-43, 144 P.3d 729 (2006) (not stating third exception; stating exception as applying to "newly asserted theory that is strictly a question of law and its consideration is necessary to serve the ends of justice"); State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003) (same); State v. Papen, 274 Kan. 149, 161-62, 50 P.3d 37 (2002) (same).

In past cases when a defendant has suggested one of the Pierce exceptions applies to an argument that a sentence is a cruel or unusual punishment, this court has determined the exception does not apply and has not considered the issue. See, e.g., State v. Myers, 260 Kan. 669, 700, 923 P.2d 1024 (1996), cert. denied 521 U.S. 1118, 117 S.Ct. 2508, 138 L.Ed.2d 1012 (1997); see also Churchill v. State, 216 Kan. 399, 399, 532 P.2d 1070 (1975) (merely stating general rule that constitutional issues are not considered for first time on appeal).

Ortega-Cadelan suggests a different result is called for in this case. Yet, he fails to argue any specifics regarding how the issue satisfies an exception. He generally suggests that our consideration of the issue is necessary to serve the ends of justice. The difficulty with this argument, as we have noted before, is that we must be able to consider the merits of the issue to determine if justice demands its resolution: "[T]o serve the ends of justice or to prevent the denial of fundamental rights, it follows that, on consideration, we must find reversible error occurred." State v. Williams, 275 Kan. 284, 289-90, 64 P.3d 353 (2003). On occasion, such as in Williams, the error will be uncontroverted and the only remaining question is the seriousness of the error. In other cases, resolution of another issue in the case will preclude or preordain the outcome of the constitutional question and answer the inquiry of whether justice demands resolution. Myers, 260 Kan. at 701, 923 P.2d 1024. Yet in still other situations, such as in this case, we must consider whether we are able to analyze the merits of the issue based upon the record before us. See Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976).

Consideration of the sufficiency of the record dovetails with the first exception of whether the newly asserted issue raises a question of law or can be decided on undisputed facts. The specific question raised in this case of whether a sentence offends the constitutional prohibition against cruel or unusual punishment includes both factual and legal questions. This court has adopted three considerations that structure the analysis:

"(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." State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978).

The first of these considerations is inherently factual, requiring examination of the facts of the crime and the particular characteristics of the defendant. Because this issue was not raised before the district court, neither party had an opportunity to present evidence or arguments to the district court. Consequently, the State suggests the issue would be better raised in a collateral proceeding brought pursuant to K.S.A. 60-1507 so that both parties have an opportunity to develop a complete record. For example, it is apparent from the transcript of the sentencing hearing that there was a psychological evaluation of Ortega-Cadelan. Had it been known that an issue of cruel or unusual punishment would be raised on appeal, it seems highly probable this evaluation would have been made a part of the record of that proceeding.

Granted, the other considerations in the analysis of whether a sentence is cruel or unusual are legal determinations, and it is primarily the second consideration on which Ortega-Cadelan builds his argument. Yet, one consideration is not necessarily controlling over the other considerations; in fact, in Freeman the three considerations were referred to as "the three pronged test." 223 Kan. at 368, 574 P.2d 950. Ultimately, one consideration may weigh so heavily that it directs the final conclusion. Before that conclusion is reached, however, consideration should be given to each prong of the test. Particularly where arguments focus upon proportionately, and that is the thrust of Ortega-Cadelan's arguments, the factual aspects of the test are a necessary part of the overall analysis.

Hence, neither the first nor the second exception applies. Similarly, the final exception—the judgment of the district court is right for the wrong reason—cannot be applied because the record is insufficient to determine the merits of the issue.

Consequently, we conclude Ortega-Cadelan's argument that his sentence is a cruel or unusual punishment, presented for the first time on appeal, is not properly before this court.

DOWNWARD DURATIONAL DEPARTURE MOTION

Next, Ortega-Cadelan argues the district court erred by denying his request for a downward durational departure sentence.

Under the statute in effect at the time of Ortega-Cadelan's offense, K.S.A.2006 Supp. 21-4643(a), a first-time offender who is age 18 years or older, convicted of committing sexual intercourse with a child under the age of 14, "shall be sentenced to a term of imprisonment for life with a mandatory minimum term of imprisonment of not less than 25 years." Subsection (d) allows for departure sentences, providing "the sentencing judge shall impose the mandatory minimum term of imprisonment provided by subsection (a), unless the judge finds...