State v. Allen

1

NOT DESIGNATED FOR PUBLICATION

No. 114,460

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

EVAN M. ALLEN,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed October 14,
2016. Sentence vacated in part and remanded with directions.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellant.

Before MALONE, C.J., SCHROEDER, J., and WALKER, S.J.

Per Curiam: Evan M. Allen appeals his sentence of lifetime postrelease
supervision for his conviction of aggravated sexual battery committed when he was a
juvenile. He argues that lifetime postrelease supervision is categorically unconstitutional
under the Eighth Amendment to the United States Constitution for juveniles convicted of
a sex offense. Based on controlling precedent from the Kansas Supreme Court, we agree.
Thus, we vacate the lifetime postrelease supervision portion of Allen's sentence for
aggravated sexual battery and remand to the district court for resentencing.

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The facts are straightforward and undisputed. On April 27, 2011, Allen pled no
contest to one count of aggravated sexual battery, one count of sexual battery, two counts
of lewd and lascivious behavior, and two counts of unlawful voluntary sexual relations.
These charges were the result of Allen's conduct with multiple victims from June 2, 2008,
through March 1, 2010. Allen was 15 years old when he committed aggravated sexual
battery and he was between 15 and 17 years old when he committed the other crimes.

The district court held a sentencing hearing on July 15, 2011. The district court
imposed a controlling sentence of 41 months' imprisonment with 24 months' postrelease
supervision. Allen appealed his sentence, but our Supreme Court dismissed the appeal on
April 19, 2013, finding it lacked jurisdiction to review Allen's presumptive sentence. See
State v. Allen, No. 107,161, 2013 WL 1729118, *1 (Kan. 2013) (unpublished opinion).

On April 16, 2015, the State filed a motion to correct illegal sentence. The State
argued that under K.S.A. 2015 Supp. 22-3717(d)(1)(G), Allen was required to receive
lifetime postrelease supervision for his conviction of aggravated sexual battery rather
than the 24-month term originally ordered by the district court. In response, Allen filed a
motion for postrelease departure findings and argued that the imposition of lifetime
postrelease supervision would be cruel and unusual punishment.

The district court held a hearing on the motion to correct illegal sentence on May
26, 2015. At the time of the hearing, Allen had been released from prison and was on
postrelease supervision. Allen called a witness to testify about his activities since his
release from prison, asked the court to consider his motion for probation filed at the
original sentencing hearing, and asked the court to depart from a sentence of lifetime
postrelease supervision. The State reasserted its arguments that Allen's original sentence
was illegal and that lifetime postrelease supervision did not constitute cruel and unusual
punishment because Allen had committed multiple offenses against multiple victims.
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After hearing the evidence and arguments of counsel, the district court granted the
State's motion to correct illegal sentence and imposed lifetime postrelease supervision.
The district court found that K.S.A. 2015 Supp. 22-3717(d)(1)(G) did not allow for
postrelease departure and, in any event, there were no substantial and compelling reasons
to justify a departure. The district court also ruled that lifetime postrelease supervision
was not unconstitutional as cruel and unusual punishment. Allen timely appealed.

The only claim Allen raises on appeal is that the district court erred when it
granted the State's motion to correct illegal sentence and imposed lifetime postrelease
supervision for his aggravated sexual battery conviction. Allen argues that pursuant to
our Supreme Court's decision in State v. Dull, 302 Kan. 32, 351 P.3d 641 (2015), cert.
denied 136 S. Ct. 1364 (2016), lifetime postrelease supervision imposed on juveniles
convicted of a sex offense violates the Eighth Amendment to the United States
Constitution. Allen also argues that lifetime postrelease supervision constitutes cruel and
unusual punishment under § 9 of the Kansas Constitution Bill of Rights.

The State responds that Dull is not dispositive of this case because it does not
apply to and should not be extended to a case such as Allen's where a juvenile has
committed multiple acts of sexual violence with multiple victims. The State also argues
that lifetime postrelease supervision does not violate § 9 of the Kansas Constitution Bill
of Rights as applied to Allen because he failed to present factors that support such a
finding and there are multiple factors that weigh against such a finding.

Whether a sentence is illegal within the meaning of K.S.A. 22-3504 is a question
of law over which appellate courts have unlimited review. State v. Taylor, 299 Kan. 5, 8,
319 P.3d 1256 (2014). The constitutionality of a sentencing statute is also a question of
law subject to unlimited review. State v. Hilt, 299 Kan. 176, 202, 322 P.3d 367 (2014).


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Issue Preservation

We must first address whether Allen has properly preserved his constitutional
claims for appeal. Allen's first claim is that lifetime postrelease supervision for juveniles
violates the Eighth Amendment to the United States Constitution. There are two
classifications of Eighth Amendment proportionality challenges: "(1) the length of term-
of-years sentences given all the circumstances in a particular case; and (2) categorical
restrictions on the death penalty." Dull, 302 Kan. at 38. This second classification also
includes cases "in which the court implements the proportionality standard based on
certain categorical restrictions." 302 Kan. at 38.

Allen's argument that the holding in Dull should be extended to his case is a
categorical proportionality challenge under the second classification of Eighth
Amendment challenges. See 302 Kan. at 39. Allen did not articulate a categorical
proportionality challenge before the district court. However, our Supreme Court
previously has considered categorical proportionality challenges raised for the first time
on appeal. See Dull, 302 Kan. at 39; State v. Williams, 298 Kan. 1075, 1084-85, 319 P.3d
528 (2014). Thus, we will address Allen's Eighth Amendment challenge on appeal.

Allen's second claim is that lifetime postrelease supervision for juveniles
constitutes cruel and unusual punishment under § 9 of the Kansas Constitution Bill of
Rights. Resolution of a § 9 challenge requires an appellate court to apply the three-factor
test provided in State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978). The Freeman
factors contain legal and factual inquiries. State v. Gomez, 290 Kan. 858, 867, 235 P.3d
1203 (2010). These factual inquiries prevent a party from raising a § 9 challenge for the
first time on appeal because the State will not have received an opportunity to develop a
record on the issue and the district court will not have received an opportunity to make
factual findings for appellate review. 290 Kan. at 867-68. Thus, a § 9 challenge must be
raised before the district court to be preserved for appeal. Dull, 302 Kan. at 38-39.
5

Allen raised his § 9 challenge in his motion for postrelease departure findings and
provided the Freeman factors in his motion. However, Allen's motion made only two
arguments in support of his § 9 challenge. Allen's first argument was that "[t]he
additional consequences imposed on defendant by now adding life time post release are
done without any consideration of the defendant's particular offense or case." This
argument is essentially a repeat of the first Freeman factor, which requires a court to
consider the nature of the offense and the character of the offender. Freeman, 223 Kan. at
367. Allen's second argument was that "[t]he additional consequences imposed of now
adding lifetime post release are so extensive and broad-sweeping that they are difficult to
compare to other offenses within or without the jurisdiction."

In State v. Thomas, 288 Kan. 157, 199 P.3d 1265 (2009), the defendant stated in
his motion for a departure that a sentence of life imprisonment without the possibility of
parole for 25 years amounted to cruel and unusual punishment as applied to his case.
However, the defendant did not address the Freeman factors, did not present any
evidence, did not raise the issue at the hearing, and did not ask the district court to make
findings of fact or conclusions of law on the issue. On appeal, our Supreme Court held
that merely mentioning his § 9 challenge in his motion to depart was insufficient to
preserve the issue for appellate review. 288 Kan. at 161; see also State v. Garza, 290
Kan. 1021, 1034, 236 P.3d 501 (2010) (merely raising § 9 challenge in departure motion
was insufficient to preserve issue for appellate review).

As in Thomas and Garza, Allen failed to preserve his § 9 challenge for appellate
review. While Allen provided the Freeman factors in his departure motion, he failed to
make any argument as to how they applied to his case. Merely asserting a § 9 challenge
and providing the Freeman factors, but not making any argument as to how the Freeman
factors apply to the defendant's case, is insufficient to preserve the issue for appeal. Thus,
we will not address Allen's challenge under § 9 of the Kansas Constitution Bill of Rights.

6

Merits of Allen's Eighth Amendment Challenge

Allen's Eighth Amendment argument focuses on the breadth of our Supreme
Court's decision in Dull. Allen contends that Dull's holding must apply to him because he
was younger than Dull when he committed his offenses and his offenses were less severe
than Dull's. The State contends that Dull's holding is limited to juveniles who have been
convicted of aggravated indecent liberties with a child and does not apply to Allen.

Allen's argument that he was younger than Dull and that his offenses were less
severe than Dull's misses the point. The holding in Dull was that mandatory lifetime
postrelease supervision was categorically unconstitutional. 302 Kan. at 61. This means
that mandatory lifetime postrelease supervision is unconstitutional as applied to a certain
category of offenders. See 302 Kan. at 44 (quoting Williams, 299 Kan. at 1086). Whether
Allen's particular circumstances are sufficiently similar to the defendant's circumstances
in Dull is not the appropriate inquiry. The appropriate inquiries are to what class of
offenders does Dull's holding apply and is Allen within that class of offenders. To answer
these inquiries, a thorough examination of Dull is necessary.

Dull was convicted in one case of aggravated indecent liberties with a child, and
he was convicted in a separate case of burglary and misdemeanor theft. Dull was 17 years
old when he committed aggravated indecent liberties, but he was prosecuted as an adult.
As a result, he received a statutorily required sentence of lifetime postrelease supervision
for that conviction. Dull appealed his sentence and argued that lifetime postrelease
supervision categorically constituted cruel and unusual punishment when applied to
juveniles. The Court of Appeals held that lifetime postrelease supervision imposed on
juveniles who were convicted of aggravated indecent liberties with a child did not
constitute cruel and unusual punishment under the Eighth Amendment. 302 Kan. at 36.
Our Supreme Court granted Dull's petition for review. 302 Kan. at 36.
7

To analyze Dull's claim, our Supreme Court applied the two-prong test set forth in
Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). 302 Kan. at
45. This required the court to first consider the "'"objective indicia of society's standards,
as expressed in legislative enactments and state practice" to determine whether there
[was] a national consensus against the sentencing practice at issue.'" 302 Kan. at 45
(quoting Graham, 560 U.S. at 61). "'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 violate[d] the Constitution.'" 302 Kan. at 45 (quoting Graham, 560 U.S. at
61).

First, the court noted that 18 states imposed mandatory lifetime postrelease
supervision for some convicted sex offenders. 302 Kan. at 50. Kansas, Colorado,
Nebraska, and Oklahoma mandated lifetime postrelease supervision of juveniles
convicted of offenses comparable to aggravated indecent liberties with a child. 302 Kan.
at 50. Arizona allowed for discretionary lifetime postrelease supervision in such
circumstances. 302 Kan. at 50. However, Indiana, Montana, and Oregon prohibited
mandatory lifetime postrelease supervision for juveniles. 302 Kan. at 50. Based on these
findings, the court held that Dull had failed to show that there was a national consensus
against imposing lifetime postrelease supervision on juveniles. 302 Kan. at 50.

Next, the court exercised its own independent judgment to determine whether
imposing mandatory lifetime postrelease supervision on juveniles constituted cruel and
unusual punishment. 302 Kan. at 51. This required the court to examine the culpability of
juvenile offenders, the severity of mandatory lifetime postrelease supervision, and the
legitimate penological goals served by lifetime postrelease supervision. 302 Kan. at 51;
see also State v. Mossman, 294 Kan. 901, 929, 281 P.3d 153 (2012).

8

As to culpability, the court cited past statements from the United States Supreme
Court and from its own decisions providing that juveniles have diminished culpability for
their crimes because of their lack of maturity, underdeveloped sense of responsibility,
vulnerability to negative influences and outside pressures, and the fact that their
characters are not well formed. 302 Kan. at 51-52. Based on these statements, the court
concluded that Dull had a diminished moral culpability for his crime because he
committed the offense when he was 17 years old. 302 Kan. at 52.

Regarding the severity of the penalty, the court found that "mandatory lifetime
postrelease supervision is a sentence that restricts the juvenile's liberty for life without
any chance, hope, or legal mechanism of having those restrictions lifted or even
reduced." 302 Kan. at 55. In support of this finding, the court noted that the restrictions
imposed included: reporting to a parole officer as directed; undergoing polygraph
examinations at the request of the parole officer; registering and reporting to the local
sheriff as directed; submitting to searches of the offender's residence, automobile, and
personal effects; not traveling outside the state without permission; not drinking alcoholic
beverages without permission; and not hunting with a firearm. 302 Kan. at 56.

Finally, the court addressed whether mandatory lifetime postrelease supervision
for juveniles served legitimate penological goals. 302 Kan. at 56. After a review of U.S.
Supreme Court cases, law review articles, and other state Supreme Court opinions, the
court held that the penological purposes served by lifetime postrelease supervision for
adults were not as applicable when they were applied to juvenile sex offenders. 302 Kan.
at 57-60. Specifically, the court found that: (1) retribution is a less compelling purpose
because juveniles have less culpability for their crimes than adults; (2) deterrence is not
served because juveniles do not have the ability to analyze their actions and the
consequences of those actions and adjust their behavior accordingly; and (3)
rehabilitation and incapacitation are not served because juveniles have a lower risk of
recidivism than adults and placing lifetime restrictions on juvenile offenders "'forswears
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altogether the rehabilitative ideal.'" 302 Kan. at 59-60. Based on all of these findings, the
Dull court concluded "that mandatory lifetime postrelease supervision is categorically
unconstitutional under Graham when imposed on a juvenile who committed and was
later convicted of aggravated indecent liberties with a child." 302 Kan. at 61.

The State is correct that the holding in Dull only provides that mandatory lifetime
postrelease supervision is categorically unconstitutional "when imposed on a juvenile
who has committed and was later convicted of aggravated indecent liberties with a child."
302 Kan. at 61. However, when the opinion in Dull is viewed as a whole, it is clear that
its ruling applies to all juveniles convicted of a sex offense, not just juveniles convicted
of aggravated indecent liberties with a child.

While the holding of Dull is limited, the reasoning is not. Throughout the opinion
the court discusses its reasoning in terms of all juveniles, not just juveniles convicted of
aggravated indecent liberties with a child. When discussing the culpability of juvenile
offenders, the court focused on the characteristics of all juveniles. 302 Kan. at 51-52. In
its discussion of the severity of lifetime postrelease supervision, the court found that it
restricted the juvenile's liberty for life. 302 Kan. at 56. Finally, the court noted that the
legitimate penological goals served by lifetime postrelease supervision applied less to
juvenile offenders because juveniles have reduced culpability for their crimes and a lower
risk of recidivism. 302 Kan. at 57-61. None of the reasoning in Dull is applicable only to
juveniles who were convicted of aggravated indecent liberties with a child. Rather, the
reasoning applies to the characteristics of juveniles in general.

The State's argument that Dull should not be extended to apply to juveniles
"convicted of crimes involving multiple victims, with multiple different acts of sexual
violence, including acts involving sexual penetration" is not tenable for two reasons.
First, drawing lines in such a case-specific manner is not permitted in a categorical
proportionality challenge because creating such specific classifications of offenders
10

"'obliterate[s] the distinction'" between case-specific and categorical challenges. 302 Kan.
at 44-45 (quoting Mossman, 294 Kan. at 928). Second, for the reasons discussed above,
the opinion in Dull does not support such a narrow interpretation of its holding.

We conclude that under Dull, mandatory lifetime postrelease supervision is
categorically unconstitutional for all juveniles convicted of a sex offense. As a result, the
imposition of lifetime postrelease supervision on Allen constitutes cruel and unusual
punishment under the Eighth Amendment of the United States Constitution. The lifetime
postrelease supervision portion of Allen's sentence for aggravated sexual battery is
therefore vacated and the case is remanded for resentencing. At resentencing, the district
court cannot impose any term of postrelease supervision for Allen's conviction of
aggravated sexual battery. See Dull, 302 Kan. at 61; State v. Kessler, 276 Kan. 202, 217,
73 P.3d 761 (2003) (where court's authority to impose sentence is controlled by statutory
procedure found unconstitutional, court has no authority to impose such sentence).

Sentence vacated in part and remanded with directions.