State v. Gomez

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 101,213

STATE OF KANSAS,
Appellee,

v.

ALEJANDRO GOMEZ,
Appellant.


SYLLABUS BY THE COURT


1.
Generally, constitutional issues cannot be raised for the first time on appeal.

2.
There are three exceptions to the general rule that constitutional issues cannot be
raised for the first time on appeal: (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.

3.
The concept of proportionality is central to the Eighth Amendment to the United
States Constitution. Embodied in the Eighth Amendment's ban on cruel and unusual
punishments is the precept that punishment for a crime should be graduated and
proportioned to the offense.


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4.
An Eighth Amendment challenge to a term-of-years sentence as disproportionate
and therefore cruel and unusual falls into one of two general classifications. The first
classification involves challenges that argue the term of years is grossly disproportionate
given all the circumstances in a particular case. The second classification comprises cases
in which the court implements the proportionality standard by certain categorical
restrictions.

5.
In conducting an Eighth Amendment analysis to determine whether a sentence for
a term of years is grossly disproportionate for a particular defendant's crime, a court must
begin by comparing the gravity of the offense and the severity of the sentence. This
analysis can consider a particular offender's mental state and motive in committing the
crime, the actual harm caused to the victim or to society by the offender's conduct, any
prior criminal history, and a particular offender's propensity for violence. In the rare case
in which this threshold comparison leads to an inference of gross disproportionality, the
court should then compare the defendant's sentence with the sentences received by other
offenders in the same jurisdiction and with the sentences imposed for the same crime in
other jurisdictions. If this comparative analysis validates an initial judgment that the
sentence is grossly disproportionate, the sentence is cruel and unusual.

6.
An Eighth Amendment challenge that the length of a term-of-years sentence is
disproportionate given all the circumstances in a particular case is a case-specific
challenge and is inherently factual. Because appellate courts do not make factual findings
but review those made by district courts, such a challenge must be raised in the district
court and a defendant must obtain the necessary findings of fact in the district court in
order to preserve the issue for appellate review.

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7.
In limited circumstances, a categorical analysis may apply to an Eighth
Amendment cruel and unusual challenge. In considering a categorical challenge, a court
first considers objective indicia of society's standards, as expressed in legislative
enactments and state practice to determine whether there is a national consensus against
the sentencing practice at issue. Next, guided by the standards elaborated by controlling
precedents and by the court's own understanding and interpretation of the Eighth
Amendment's text, history, meaning, and purpose, the court must determine in the
exercise of its own independent judgment whether the punishment in question violates
the United States Constitution. The judicial exercise of independent judgment requires
consideration of the culpability of the category of offenders at issue in light of their
crimes and characteristics, along with the severity of the punishment in question. In this
inquiry the court also considers whether the challenged sentencing practice serves
legitimate penological goals of retribution, deterrence, incapacitation, and rehabilitation.

8.
To preserve an issue for appellate review, a party must do more than incidentally
raise the issue in an appellate brief. The party must present an argument and support that
argument with pertinent authority or show why the argument is sound despite a lack of
supporting authority or in the face of contrary authority. Otherwise, the argument will be
deemed abandoned.

9.
Under § 9 of the Kansas Constitution Bill of Rights, a punishment may be
constitutionally impermissible, although not cruel or unusual in its method, if it is so
disproportionate to the crime for which it is inflicted that it shocks the conscience and
offends fundamental notions of human dignity. A three-part test is utilized to administer
this principle: (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
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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.

10.
The three-part test to be applied to a disproportionality challenge based on § 9 of
the Kansas Constitution Bill of Rights includes both legal and factual inquiries and no
single factor controls the outcome.

11.
An argument that a sentence violates § 9 of the Kansas Constitution Bill of Rights
because it is cruel or unusual cannot be raised for the first time on appeal.

Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed July 9, 2010.
Affirmed.

Matthew J. Edge, of Kansas Appellate Defender Office, was on the brief for appellant.

David Lowden, chief attorney, appellate division, Nola Tedesco Foulston, district attorney, and
Steve Six, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: Alejandro Gomez pleaded guilty to one count of aggravated indecent
liberties with a child under the age of 14, in violation of K.S.A. 2006 Supp. 21-
3504(a)(3). The district court denied his motion for a durational departure sentence and
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sentenced him to life in prison with a mandatory minimum sentence of 25 years under
K.S.A. 2006 Supp. 21-4643(a)(1)(C), commonly known as Jessica's Law. The district
court also imposed postrelease supervision for life pursuant to K.S.A. 2006 Supp. 22-
3717(d)(1)(G), (d)(2)(C).

For the first time on appeal, Gomez challenges his sentence as a cruel and/or
unusual punishment under the Eighth Amendment to the United States Constitution and §
9 of the Kansas Constitution Bill of Rights, arguing the sentence is disproportionate. In
response, the State argues Gomez is not entitled to a proportionality review under the
Eighth Amendment and his failure to make a specific objection and to present a basis for
his challenge while in the district court is fatal to his request for review on the merits. We
reject the State's argument that a proportionality challenge is not allowed under the
Eighth Amendment in light of the recent decision in Graham v. Florida, 560 U.S. ___,
2010 WL 1946731 (May 17, 2010), which was decided after this case was submitted to
this court. However, we agree with the State's argument that Gomez' failure to preserve
the issues precludes our review.

FACTUAL AND PROCEDURAL BACKGROUND

Under the plea agreement, Gomez was free to seek a durational departure
sentence, but the State could oppose such a request. There was no indication in the plea
agreement that Gomez would argue the unconstitutionality of the life sentence.

As permitted under the agreement, Gomez filed a motion for a sentencing
departure based on several alleged factors, including his accepting responsibility for the
crime, his cooperation with law enforcement during the investigation, his remorse, his
lack of criminal history, his risk of being deported, and an evaluation, not included in the
record on appeal, indicating Gomez' "low risk" of recidivism and the absence of "danger
to the public." After considering the mitigating factors presented by Gomez, the district
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court denied his motion for a durational departure sentence, finding no substantial and
compelling reason to depart from the minimum statutory sentence.

Gomez did not raise a cruel and unusual punishment argument in his motion for
departure or in his oral arguments at the sentencing hearing. Nor did he ask for findings
relating to the cruel and unusual nature of the sentence.

Gomez filed a timely appeal. This court's jurisdiction is under K.S.A. 22-
3601(b)(1) (off-grid crime; life sentence).

CRUEL AND UNUSUAL PUNISHMENT

Gomez does not separately analyze his claims that his life sentence imposed upon
him under K.S.A. 2006 Supp. 21-4643(a)(1)(C) violates the constitutional prohibition
against cruel and unusual punishment found in the Eighth Amendment to the United
States Constitution, made applicable to the States through the Fourteenth Amendment,
and against cruel or unusual punishment found in § 9 of the Kansas Constitution Bill of
Rights. Nevertheless, the State appropriately separates the analysis, and we will as well.

Issue Raised for First Time on Appeal

There is, however, a threshold question that applies to both the federal and state
constitutional issues: Can Gomez' cruel and unusual punishment arguments be considered
for the first time on appeal? This court has held, in general, that constitutional issues
cannot be raised for the first time on appeal. State v. Ortega-Cadelan, 287 Kan. 157, 159,
194 P.3d 1195 (2008). Three exceptions to the general rule (hereinafter referred to as
Pierce exceptions) have been recognized, however. They are: "(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
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the wrong reason." Ortega-Cadelan, 287 Kan. at 159; see Pierce v. Board of County
Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858 (1967).

Gomez argues his case falls within the first and second Pierce exceptions because
the issue only involves a question of law and relates to the fundamental right that
prohibits cruel and unusual punishment. The State also argues that the first Pierce
exception applies, but only to the extent of considering whether as a matter of law a
defendant may make an Eighth Amendment proportionality claim. Any further analysis,
the State argues, fails to satisfy any of the three exceptions.

Eighth Amendment

The State's argument, in part, is that the United States Supreme Court's decisions
in 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); 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), and Rummel v. Estelle, 445 U.S. 263,
63 L. Ed. 2d 382, 100 S. Ct. 1133 (1980), effectively eliminated proportionality claims
made under the Eighth Amendment. The State was not alone in this assessment. In 1980,
this court concluded that the United States Supreme Court "in Rummel essentially rejects
the proposition that disproportionality analysis is required by the 8th Amendment. The
length of sentence imposed on felons is solely a legislative decision." State v. McDaniel
& Owens, 228 Kan. 172, 184, 612 P.2d 1231 (1980). The decisions subsequent to
Rummel, in the Supreme Court's own words, did "not [establish] a clear or consistent path
for courts to follow" regarding proportionality challenges. Lockyer, 538 U.S. at 72.

Nevertheless, on May 17, 2010, the Supreme Court called this court's conclusion
in McDaniel into doubt when it announced:

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"The concept of proportionality is central to the Eighth Amendment. Embodied in the
Constitution's ban on cruel and unusual punishments is the 'precept of justice that
punishment for crime should be graduated and proportioned to [the] offense.' Weems v.
United States, 217 U.S. 349, 367, 54 L. Ed. 793, 30 S. Ct. 544, (1910)." Graham, 2010
WL 1946731, at*7.

In light of this holding, we cannot accept the State's argument that Gomez cannot as a
matter of law make a proportionality claim based on the Eighth Amendment.

This limited question of law is the only question regarding which the parties agree
that one of the Pierce exceptions might apply. The State argues that any other aspect of
Gomez' proportionality arguments includes factual components that must be raised before
the district court. However, this argument was made pre-Graham and focused on an
analysis under the Kansas Constitution. We must determine whether the argument is
valid given the analytical framework established in the Graham decision. Graham does
not directly answer the question, but the opinion aids our determination of whether one of
the Pierce exceptions applies.

Specifically, we find guidance in the Graham Court's statement of the test to be
applied to a proportionality challenge. In that discussion, the Graham Court discussed its
past decisions and placed those decisions into two general classifications. "The first
involves challenges to the length of term-of-years sentences given all the circumstances
in a particular case. The second comprises cases in which the Court implements the
proportionality standard by certain categorical restrictions on the death penalty."
Graham, 2010 WL 1946731, at *8. In explaining the analysis under the first category, the
Court stated:

"The controlling opinion in Harmelin explained its approach for determining
whether a sentence for a term of years is grossly disproportionate for a particular
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defendant's crime. A court must begin by comparing the gravity of the offense and the
severity of the sentence. 501 U.S., at 1005 (opinion of KENNEDY, J.). '[I]n the rare case
in which [this] threshold comparison . . . leads to an inference of gross disproportionality'
the court should then compare the defendant's sentence with the sentences received by
other offenders in the same jurisdiction and with the sentences imposed for the same
crime in other jurisdictions. [Citation omitted.] If this comparative analysis 'validate[s] an
initial judgment that [the] sentence is grossly disproportionate,' the sentence is cruel and
unusual. [Citation omitted.]" Graham, 2010 WL 1946731, at *8.

Chief Justice Roberts, in his concurring opinion, expanded on the considerations
discussed in past cases, noting:

"Our cases indicate that courts conducting 'narrow proportionality' review should
begin with a threshold inquiry that compares 'the gravity of the offense and the harshness
of the penalty.' Solem, 463 U.S., at 290-291. This analysis can consider a particular
offender's mental state and motive in committing the crime, the actual harm caused to his
victim or to society by his conduct, and any prior criminal history. Id., at 292-294, 296-
297, and n.22, (considering motive, past criminal conduct, alcoholism, and propensity for
violence of the particular defendant); see also Ewing, supra, at 28-30, (plurality opinion)
(examining defendant's criminal history); Harmelin, 501 U.S., at 1001-1004, (opinion of
KENNEDY, J.) (noting specific details of the particular crime of conviction)." Graham,
2010 WL 1946731, at *26 (Roberts, C.J., concurring).

These factors are case specific and inherently factual, and "[a]ppellate courts do
not make factual findings but review those made by district courts." State v. Thomas, 288
Kan. 157, 161, 199 P.3d 1265 (2009). Consequently, we conclude Gomez' failure to raise
these issues before the district court and obtain the necessary findings of fact precludes
our review of the first, as-applied, classification discussed in Graham, 2010 WL
1946731, at *8. See State v. Seward, 289 Kan. 715, 721, 217 P.3d 443 (2009) ("[A]
defendant who wishes to appeal on the basis of a constitutional challenge to a sentencing
statute must ensure the findings and conclusions by the district judge are sufficient to
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support appellate argument, by filing of a motion invoking the judge's duty under Rule
165 [2009 Kan. Ct. R. Annot. 239], if necessary.").

The second classification discussed in Graham, 2010 WL 1946731, was the
categorical challenge that had historically been preserved for death penalty challenges.
Despite the previously limited context in which the classification had been applied, the
Graham majority applied the categorical analysis to a term-of-years challenge and
concluded the Eighth Amendment does not permit a juvenile offender to be sentenced to
life in prison without parole for a nonhomicide crime.

From the Graham Court's analysis it is not clear whether the Court would apply
the categorical analysis in other contexts. Consequently, if we were to conduct a
categorical analysis, the first question we would have to decide is whether the analysis
would be extended to other categorical challenges. If we were to apply the categorical
analysis, the Graham Court outlined the analytical framework that would apply. The
Court explained there are two subsets of these cases, "one considering the nature of the
offense, the other considering the characteristics of the offender." Graham, 2010 WL
1946731, at *9. The Court then explained:

"The Court first considers 'objective indicia of society's standards, as expressed in
legislative enactments and state practice' to determine whether there is a national
consensus against the sentencing practice at issue. [Citation omitted.] Next, guided by
'the standards elaborated by controlling precedents and by the Court's own understanding
and interpretation of the Eighth Amendment's text, history, meaning, and purpose,'
[citation omitted], the Court must determine in the exercise of its own independent
judgment whether the punishment in question violates the Constitution. [Citation
omitted.]" Graham, 2010 WL 1946731, at *9.

Explaining the application of these factors, the Court stated:

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"Community consensus, while 'entitled to great weight,' is not itself
determinative of whether a punishment is cruel and unusual. [Citation omitted.] In
accordance with the constitutional design, 'the task of interpreting the Eighth Amendment
remains our responsibility.' [Citation omitted.] The judicial exercise of independent
judgment requires consideration of the culpability of the offenders at issue in light of
their crimes and characteristics, along with the severity of the punishment in question.
[Citations omitted.] In this inquiry the Court also considers whether the challenged
sentencing practice serves legitimate penological goals. [Citations omitted]." Graham,
2010 WL 1946731, at *13.

The Graham Court noted its past cases recognized retribution, deterrence, incapacitation,
and rehabilitation as "legitimate" goals of penal sanctions. Graham, 2010 WL 1946731,
at *15.

These factors are not case specific and generally raise questions of law. Given that
consideration, the first Pierce exception—questions of law may be raised for the first
time on appeal if determinative of a case—may apply. But two additional considerations
arise regarding whether we can reach an Eighth Amendment categorical analysis. First,
even though we recognize that Gomez' brief was filed before the Graham decision,
Gomez has not filed a Rule 6.09(b) supplementation of authority to ask us to consider and
apply Graham. See Supreme Court Rule 6.09 (2009 Kan. Ct. R. Annot. 47). Second,
although Gomez cites to the Eighth Amendment in his appellate brief, he does not
develop the argument and he does not cite any decisions of the United States Supreme
Court in support of his passing reference to the Eighth Amendment. Rather, he focuses on
Kansas cases and the analytical framework adopted in this court's decisions.

To preserve an issue for appellate review, a party must do more than incidentally
raise the issue in an appellate brief. The party must present an argument and support that
argument with pertinent authority or show why the argument is sound despite a lack of
supporting authority or in the face of contrary authority. Otherwise, the argument will be
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deemed abandoned. See State v. Conley, 287 Kan. 696, 703, 197 P.3d 837 (2008) (failure
to support point with pertinent authority or show why it is sound despite lack of
supporting authority or in face of contrary authority is akin to failing to brief issue);
Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008) (point raised incidentally in
brief and not argued there is deemed abandoned). We deem Gomez' argument under the
Eighth Amendment to have been abandoned. Hence, we do not decide whether a
categorical challenge could be brought under the circumstances of this case or whether, if
allowed, such a challenge would be meritorious.

Kansas Constitution

We turn to Gomez' argument that his life sentence violates § 9 of the Kansas
Constitution Bill of Rights because the sentence is disproportionate. As opposed to the
decisions of the United States Supreme Court, the decisions of this court in applying § 9
of the Kansas Constitution Bill of Rights have consistently allowed a claim that a term-
of-years sentence was disproportionate. In McDaniel, after noting the perceived retreat by
the United States Supreme Court from its proportionality cases, this court concluded it
would continue to apply the proportionality test established in State v. Freeman, 223 Kan.
362, 574 P.2d 950 (1978). McDaniel, 228 Kan. at 184-85.

In Freeman, this court recognized: "Punishment may be constitutionally
impermissible, although not cruel or unusual in its method, if it is so disproportionate to
the crime for which it is inflicted that it shocks the conscience and offends fundamental
notions of human dignity." Freeman, 223 Kan. at 367. We set out a three-part test to aid
in administering this principle, stating:

"(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
12

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." Freeman, 223 Kan. at 367.

In recent opinions, we have held that the Freeman factors include both legal and
factual inquiries and that no single factor controls the outcome. State v. Oehlert, 290 Kan.
___, Syl. ¶ 3, 224 P.3d 561 (2010); State v. Mondragon, 289 Kan. 1158, 1163, 220 P.3d
369 (2009); Seward, 289 Kan. at 719; State v. Easterling, 289 Kan. 470, 486, 213 P.3d
418 (2009); State v. Spotts, 288 Kan. 650, 653, 206 P.3d 510 (2009); Thomas, 288 Kan.
at 161; Ortega-Cadelan, 287 Kan. at 161. Because of the factual inquiries involved, we
have concluded none of the Pierce exceptions applies and have refused to consider an
argument that a sentence is cruel and unusual for the first time on appeal, citing as
reasons that the State has not been given the opportunity to develop a record on the issue
and the district court had not made factual findings. See Mondragon, 290 Kan. 1158, Syl.
¶ 2; Easterling, 289 Kan. at 485-87; Spotts, 288 Kan. at 653-54; Thomas, 288 Kan. at
161; Ortega-Cadelan, 287 Kan. 157, Syl. ¶ 2.

In Seward, 289 Kan. 715, we did remand the case for further proceedings after
finding that the defendant had sufficiently preserved the cruel or unusual punishment
issue. The procedural history in Seward stands in sharp contrast to that in this case.
Seward mentioned his cruel or unusual claim during plea negotiations, included it in his
written downward departure motion, and reiterated the claim on the record at the
sentencing hearing. In contrast, Gomez did not raise the constitutionality issue or develop
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the record below to allow this court to consider it. In this regard, Gomez is in the same
position as the defendants in Mondragon, Easterling, Spotts, Thomas, and Ortega-
Cadelan. Because Gomez made no effort before the district court to present the issue of
whether a Jessica's Law sentence is cruel or unusual under § 9 of the Kansas Constitution
Bill of Rights, the issue cannot be raised for the first time on appeal.

The judgment of the district court is affirmed.

DAVIS, C.J., not participating.

LARSON, S.J., assigned. 1
1 REPORTER'S NOTE: Senior Judge Edward Larson was appointed to hear case No.
101,213 vice Chief Justice Davis pursuant to the authority vested in the Supreme Court
by K.S.A. 20-2616.