Van Dyke v. State, 87,137

• Decision Date: 20 June 2003
• Docket Number: No. 87,137,87,137
• Citation: 70 P.3d 1217,31 Kan.App.2d 668
• Parties: WILLIAM E. VAN DYKE, Appellant, v. STATE OF KANSAS, Appellee.
• Court: Kansas Court of Appeals

31 Kan.App.2d 668

70 P.3d 1217

WILLIAM E. VAN DYKE, Appellant, v. STATE OF KANSAS, Appellee.

No. 87,137

Court of Appeals of Kansas

Opinion filed June 20, 2003.

James E. Rumsey, of Lawrence, for appellant.

Angela M. Wilson, assistant district attorney, Christine E. Kenney, district attorney, and Carla J. Stovall, attorney general, for appellee.

Before BEIER, P.J., ELLIOTT and GREEN, JJ.

BEIER, J.:

William Van Dyke appeals the denial of his K.S.A. 60-1507 motion, claiming that his presumptive 55-month sentence for attempted rape constitutes cruel and unusual punishment.

Van Dyke is 79 years old. He entered into a plea bargain in which the State agreed to drop charges of rape, aggravated criminal sodomy, and aggravated indecent liberties with a child in exchange for a plea to one count of attempted rape of his 10-year-old granddaughter, who has cerebral palsy. Van Dyke was informed that a severity level 3 person felony and a criminal history of "I" carried a presumptive prison term of 55 months to 61 months in prison and that he could receive a sentence as long as 247 months. Van Dyke moved for a downward dispositional departure.

At the departure hearing, clinical psychologist Robert Schulman testified that he began evaluating Van Dyke in October 1999. He concluded that Van Dyke was not a pedophile and was not a danger to society or other children. He further opined that Van Dyke's wife's participation in therapy was critical to its success and, if Van Dyke went to prison, that the impact of his depression and his physical problems would cause him to lose his will to live.

Van Dyke's wife and three of his adult children testified that Van Dyke was very dependent on his wife and very depressed. They all expressed concern for his emotional and physical health and believed that he would give up the will to live if sent to prison. Van Dyke stated that he suffered from numerous medical problems, including heart, prostate, kidney, and back conditions.

The district court denied the motion to depart, stating:

"This is a crime against an individual who had a very close relationship with the defendant and the individual of course by the plea was found to be youth of a child victim and there is evidence that incarceration in this case would be health endangering to the defendant and to be honest, that's what I wrestled most with in the matter but I've had to balance this case and give recognition for the crime that is committed by Mr. Van Dyke, the relationship you had and it is that the type of sentencing that hopefully would have other individuals who find themselves in a similar position as you a deterrent.

"Again this is a difficult matter because of your age, because of your health, because of the dependency of your wife; but due to the nature of the crime, due to the relationship of the victim and, of course, her afflictions as well, cerebral palsy, this court believes that the issue here goes beyond vindictiveness. The court is sincerely aware that the programs in the prison system albeit, of course not somebody with the qualification that Dr. Schulman would provide would still hopefully provide some type of treatment and rehabilitative effort for you."

Van Dyke is now housed at the Hutchinson Correctional Facility.

Van Dyke filed the instant K.S.A. 60-1507 motion, alleging the district court's refusal to grant a downward dispositional departure and the requirement that he serve his sentence in the custody of the Secretary of Corrections constituted cruel and unusual punishment under the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights.

According to the parties' agreed statement of facts, Schulman visited Van Dyke on four occasions while Van Dyke was still housed at the Douglas County Jail. Van Dyke's wife was present at three of the meetings. Over this period of time, Van Dyke deteriorated psychologically, becoming more depressed and anxious. According to Schulman, the effect of Van Dyke's separation from his wife created a downward trend in his functioning and in his ability to be treated; he was having difficulty beyond that expected during a normal adjustment to prison. Although depression had been a driving force behind the sexual abuse, Van Dyke's depression had progressed to an "immobilizing" level such that he would not be a threat to others if released to an outpatient program.

Van Dyke's wife observed that her husband had become deeply depressed; his hands shook; he had greatly reduced mobility of his shoulder joint; his voice was shaky; and he had lost weight because he was rushed at mealtime. She described him as horribly guilt ridden and sorry, sad all of the time, and mixed up and confused. She was concerned that the psychological effects of the incarceration would cause him to shut down and eventually die.

At oral argument on the motion, Van Dyke's counsel articulated three reasons why Van Dyke's sentence was cruel and unusual: (1) the length of the sentence; (2) the gross disproportionality of the sentence; and (3) Van Dyke's need for medical or psychological treatment that could not be provided while he was in the custody of the Secretary of Corrections. Van Dyke's counsel also argued that the sentence was cruel and unusual as applied to his client because the evidence showed that Van Dyke would die if sent to prison. Specifically, he argued that uncontroverted evidence showed Van Dyke's condition would deteriorate if his wife were not permitted to be involved in his treatment and that she could not be involved while he was housed in prison at Hutchinson.

The district court denied the 60-1507 motion, finding Van Dyke had "failed to prove by a preponderance of the evidence that the sentence was indeed cruel and unusual under any of the arguments."

In his appellate briefs, Van Dyke argues that his sentence violates the Eighth Amendment and § 9 of the Kansas Constitution Bill of Rights in two aspects: its length and its mode of service. At oral argument, Van Dyke's counsel also indicated that his client challenged the absence of effective medical and psychological treatment at Hutchinson Correctional Facility as a deliberate indifference to his health problems, a third type of cruel and unusual punishment claim. We address each argument in turn.

Length/Proportionality

Our most recent guidance on how to evaluate a claim that a term of years is disproportionate and, therefore, cruel and unusual punishment under the Eighth Amendment came in two United States Supreme Court cases decided this term. In each, the Court reviewed sentences involving California's "three strikes" law. See Ewing v. California, 538 U.S. 11, 155 L. Ed. 2d 108, 123 S. Ct. 1179 (2003); Lockyer v. Andrade, 538 U.S. 63, 155 L. Ed. 2d 144, 123 S. Ct. 1166 (2003). These decisions were announced after oral argument on this appeal, and neither party has filed a notice of supplemental authority under Supreme Court Rule 6.09 (2002 Kan Ct. R. Annot. 41) or otherwise sought to assist us with interpretation of the Supreme Court's language.

In Ewing, the defendant walked out of a golf course pro shop with three golf clubs worth a total of $1,200 hidden in his pant leg. Ewing had a lengthy record of theft, drug, burglary, and robbery convictions and was on parole when he stole the golf clubs. The robbery and three burglary convictions qualified as prior serious or violent felonies under the California sentencing scheme, and Ewing received a sentence of 25 years to life.

The Supreme Court ultimately upheld the sentence, rejecting Ewing's claim that it was grossly disproportionate under the Eighth Amendment. Justice O'Connor, speaking for herself, Chief Justice Rehnquist, and Justice Kennedy, reviewed earlier decisions in four proportionality cases: Harmelin v. Michigan, 501 U.S. 957, 115 L. Ed. 2d 836, 111 S. Ct. 2680 (1991); Solem v. Helm, 463 U.S. 277, 77 L. Ed. 2d 637, 103 S. Ct. 3001 (1983); Hutto v. Davis, 454 U.S. 370, 70 L. Ed. 2d 556, 102 S. Ct. 703 (1982); and Rummel v. Estelle, 445 U.S. 263, 63 L. Ed. 2d 382, 100 S. Ct. 1133 (1980). In only one of the four, Solem, had the Court concluded the Eighth Amendment prohibited the sentence under consideration. The defendant in that case had received a life sentence without possibility of parole for a seventh nonviolent felony.

In Harmelin, the defendant was not a recidivist; as a first-time offender, he had received life in prison without possibility of parole for possession of 672 grams of cocaine. Still, as Justice O'Connor observed in Ewing, "[a] majority of the Court rejected Harmelin's claim that his sentence was so grossly disproportionate that it violated the Eighth Amendment. The Court, however, could not agree on why his proportionality argument failed." 538 U.S. at 23. Justice Scalia, joined by Chief Justice Rehnquist, concluded the proportionality principle was limited to death penalty cases, "rather than a generalizable aspect of Eighth Amendment law." Harmelin, 501 U.S. at 994. On the other hand, Justice Kennedy and two other members of the Court would have recognized the proportionality principle in noncapital cases. Justice Kennedy set forth four principles to be considered in a proportionality review: "the primacy of the legislature, the variety of legitimate penological schemes, the nature of our federal system, and the requirement that proportionality review be guided by objective factors"; these four principles, in turn, "inform" a fifth and final one: "The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are `grossly disproportionate' to the crime." Harmelin, 501 U.S. at 1001 (Kennedy, J., concurring in part and concurring in the judgment) (citing Solem, 463 U.S. at 288, 303).

In the Ewing decision, Justice O'Connor chose to rely upon Justice Kennedy's five Harmelin principles. Addressing the first three, she said...