State v. Proctor, 104,697.

• Citation: 47 Kan.App.2d 889,280 P.3d 839
• Decision Date: 06 July 2012
• Docket Number: No. 104,697.,104,697.
• Parties: STATE of Kansas, Appellee, v. Daniel PROCTOR, Appellant.
• Court: Kansas Court of Appeals

47 Kan.App.2d 889

280 P.3d 839

STATE of Kansas, Appellee,

v.Daniel PROCTOR, Appellant.

No. 104,697.

Court of Appeals of Kansas.

July 6, 2012.

Unconstitutional as Applied

West's K.S.A. 22–3717(d)(1)(G), 75–5217(c)

Syllabus by the Court

Under the facts of this case, imposition of lifetime postrelease supervision on this defendant, as provided in K.S.A. 2009 Supp. 22–3717(c)(1)(G) and K.S.A. 2009 Supp. 75–5217(c), violates the prohibitions against cruel and unusual punishment in the United States and Kansas Constitutions.

Michelle A. Davis and Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

Christina Trocheck and Charles Ault–Duell, assistant county attorneys, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.

Before LEBEN, P.J., PIERRON and ATCHESON, JJ.

ATCHESON, J.

In this case, the court must address the constitutionality of a sentence potentially subjecting Defendant Daniel Proctor to lifetime postrelease supervision and, in turn, to imprisonment for life without parole if he were later to commit any felony, including a property crime otherwise calling for probation. Proctor faces that prospect because he pled guilty to a sex offense—aggravated indecent solicitation of a child—for which he has received a permissible guideline sentence of probation. For Proctor, a man in his early 20's, the statutory sentencing scheme could put him behind bars for 50 years if he were to shoplift a $1,000 ring or computer or to write a bad check for them. Given Proctor's circumstances and the peculiarly harsh result that could be inflicted on him, the sentence violates the protections against cruel and unusual punishment contained in § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution. The punishment may be considered grossly disproportionate in that context and incompatible with the general purposes of incarceration as a sanction in the criminal justice system. We, therefore, vacate the sentence imposed on Proctor to that extent and remand to the Saline County District Court for resentencing.

The governing statutes create the prospect of an exceptionally severe punishment—life in prison without parole is second only to a death sentence in its extremity—for persons convicted of designated sex offenses who then commit property crimes. For Proctor, the disparity between his criminal conduct and that punishment reflects an imbalance of a magnitude implicating constitutional protections. The Kansas sentencing statutes permit probation for both his underlying offense in this case and property crimes amounting to felonies. But the commission of those two offenses in that order may lead to life in prison with no prospect for release. Controlling authority from the United States Supreme Court and the Kansas Supreme Court construing the federal and state constitutional prohibitions on cruel and unusual punishment cannot be reconciled with that result. The sentencing scheme exacts a punishment harsher than those for murder, kidnapping, and other crimes the Kansas Legislature has designated as more serious than Proctor's. It also appears to be more severe than similar statutes applied to sex offenders in the vast majority of other states. Those are the ingredients of an unconstitutionally disproportionate punishment.

I. The Facts and The District Court Proceedings

The facts about Proctor's offenses are limited based on the disposition of the case in the district court. In 2010, Proctor pled guilty to one count of aggravated indecent solicitation of a child in violation of K.S.A. 21–3511 and two counts of lewd and lascivious behavior in violation of K.S.A. 21–3508(a)(2). Aggravated indecent solicitation entails “enticing or soliciting” a child younger than 14 years old to engage in an unlawful sex act. It is a severity level 5 person felony. Lewd and lascivious conduct requires that the perpetrator, motivated by a sexual urge, expose his or her genitals in the presence of a nonconsenting person. If the nonconsenting individual is younger than 16 years old, the offense is a severity level 9 person felony.

At the time of the plea, Proctor was 19 years old and had no criminal history. The factual basis for the plea showed the crimes took place in 2009. The victim was T.C., a 12–year–old boy. Proctor had known T.C. and his family for some time. For reasons that are not entirely clear from the record, Proctor lived with T.C. and his family for several months in 2009 and committed the crimes during that time. Proctor apparently cajoled T.C. into having manual and oral contact with Proctor's penis. Proctor also had manual contact with T.C.'s penis, behind, and anus. The record indicates multiple occurrences of illicit contact, but the precise or approximate number was not specified.

T.C. suffered no physical injuries. He did, however, have ongoing emotional problems and was in counseling. Other than recurrent insomnia, those problems were not detailed in the record. T.C. did not attend Proctor's sentencing, and nobody appeared on his behalf or submitted a written statement for the district court's consideration.

Proctor was himself a victim of sexual abuse in his early adolescence but apparently never received counseling. He also had not been through any sort of treatment program for sex offenders. Information submitted to the district court at sentencing indicated Proctor would likely benefit significantly from such a program.

Given his lack of criminal history, Proctor fell in a border box on the sentencing grid for the aggravated solicitation conviction and faced incarceration for between 21 and 34 months. The border box sentences are treated as calling for presumptive incarceration. K.S.A. 2009 Supp. 21–4704(f). But a district court may impose a nonprison sentence on a border-box defendant upon a finding that he or she is amenable to “an appropriate treatment program” and participation in the program would be more effective than incarceration in “reducing the risk of ... recidivism” consistent with “community safety interests.” K.S.A. 2009 Supp. 21–4704(f)(1)–(3). The district court made that finding based on the availability of sex offender treatment for Proctor. The district court imposed a standard sentence of 32 months in prison on Proctor for the aggravated solicitation conviction, put him on a 36–month probation, and ordered that he be placed in community corrections and participate in the treatment program. The district court imposed other restrictions and requirements on Proctor, such as refraining from use of alcohol or illegal drugs, obtaining gainfulemployment, and reporting as required to court officers supervising his probation. The sentence is not considered a departure. K.S.A. 2009 Supp. 21–4704(f).

The lewd and lascivious convictions were presumptive probation offenses. The district court granted Proctor probation on them. The district court imposed a standard 6–month sentence on each of those counts and ordered that they be run consecutive to one another and to the aggravated solicitation count, yielding a controlling prison term of 44 months. At sentencing, the district court told Proctor that he would be required to register as a sex offender under K.S.A. 22–4901 et seq. and that he would be subject to lifetime postrelease supervision under K.S.A. 2009 Supp. 22–3717(d)(1)(G), (d)(2)(F).

Immediately before sentencing, the district court took up Proctor's motion requesting the lifetime postrelease supervision statute be held unconstitutional as applied to him because it amounted to cruel and unusual punishment under both the state and federal constitutions. Both sides submitted extensive written arguments to the district court. At the hearing, the district court made findings of fact about Proctor and the offenses and concluded lifetime supervised release could be constitutionally imposed on Proctor. Proctor has timely appealed that ruling.

II. Statutory and Constitutional Provisions

The framework for lifetime postrelease supervision is principally set forth in two statutes. Under K.S.A. 2009 Supp. 22–3717(d)(1)(G), anyone convicted of a defined “sexually violent crime” committed after June 30, 2006, and “released from prison, shall be released to a mandatory period of postrelease supervision for the duration of the person's natural life.” In K.S.A. 2009 Supp. 22–3717(d)(2), the legislature designated the sexually violent crimes requiring lifetime postrelease supervision, including aggravated indecent solicitation of a child. The legislature empowered the Kansas Parole Board to administer postrelease supervision and statutorily set forth certain procedural requirements for the Board in determining violations and specified consequences for particular violations. K.S.A. 2009 Supp. 75–5217. Particularly pertinent to Proctor's appeal, the statute provides: “If the violation results from a conviction for a new felony ... the inmate shall serve the entire remaining balance of the period of postrelease supervision even if the new conviction did not result in the imposition of a new term of imprisonment.” K.S.A. 2009 Supp. 75–5217(c). A violation based on a misdemeanor conviction permits the parole board to impose “a period of confinement” up to the full length of the postrelease supervision. K.S.A. 2009 Supp. 75–5217(d).

The statutory language seems plain enough. A defendant sent to prison for one of the statutorily designated sexual offenses is subject to lifetime supervision after his or her release from custody. In turn, a person convicted of any felony while on lifetime supervision must be returned to prison for the rest of his or her life. The return is mandatory, and there is no administrative basis for mitigation or early release.

Through Executive Reorganization Order No. 34, issued January 21, 2011, Governor Sam Brownback abolished the parole board and replaced it with the prison review...