State v. Brown

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NOT DESIGNATED FOR PUBLICATION

No. 114,637

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

WENDY BROWN,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed June 17, 2016.
Affirmed.

Joanna Labastida, of Kansas Appellate Defender Office, for appellant.

Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.

Before BRUNS, P.J., POWELL and GARDNER, JJ.

Per Curiam: Wendy Brown pleaded guilty to indecent liberties with a child and
aggravated indecent liberties with a child. More than 2 years after Brown was sentenced,
the district court granted the State's motion to correct an illegal sentence and imposed
lifetime postrelease supervision. On appeal, Brown claims the lifetime postrelease
supervision portion of her sentence is unconstitutional under § 9 of the Kansas
Constitution Bill of Rights and the Eighth Amendment to the United States Constitution.
We disagree and affirm.

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FACTUAL AND PROCEDURAL BACKGROUND

In 2012, Brown was charged with aggravated indecent liberties with a child,
indecent liberties with a child, and two counts of sexual exploitation of a child. Brown
was alleged to have solicited her 13-year-old daughter, B.D.R., and her daughter's 15-
year-old friend, A.M.S., to lewdly fondle or touch another person. The aggravated
indecent liberties with a child charge was filed as an off-grid felony, and the indecent
liberties with a child charge was filed as severity level 5 person felony.

Brown entered into a plea agreement with the State in which she agreed to plead
guilty to aggravated indecent liberties with a child and indecent liberties with a child. In
exchange, the State agreed to dismiss the sexual exploitation of a child charges and
amend the aggravated indecent liberties charge to a severity level 3 person felony. Both
parties agreed to recommend midrange, consecutive sentences and agreed to no appeals
or departures of any kind. Brown further agreed to fully debrief law enforcement officers
and testify against any codefendants. At the plea hearing, the district court advised Brown
of her rights, and she pled guilty to both charges. No specific factual basis was made, but
Brown stated that she committed the offenses alleged in the complaint.

At the sentencing hearing, testimony was presented about the impact Brown's
actions had on the lives of the victims and their families. A.M.S.'s mother, B.D.R.'s
father, and B.D.R. herself testified. The State also read letters from A.M.S., B.D.R.'s
stepmother, and B.D.R.'s younger sister. The district court accepted the joint sentencing
recommendation listed in the plea agreement and sentenced Brown to consecutive prison
terms of 59 and 32 months, for a controlling term of 91 months, with 36 months of
postrelease supervision. Brown was also ordered to register as a sex offender.

More than 2 years later, the State filed a motion to correct an illegal sentence,
arguing that the district court's imposition of 36 months' postrelease supervision was
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incorrect and, based on Brown's convictions, the district court was statutorily required to
impose lifetime postrelease supervision. At the motion hearing, defense counsel argued
that lifetime postrelease supervision would be unconstitutionally cruel and/or unusual
punishment under State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978).

After determining that the second and third Freeman factors were primarily well-
settled legal questions, the district court considered the first factor, which required it to
make factual findings. The district court found that Brown's actions were more serious
than the description given by defense counsel, noting that Brown had sent nude photos of
the girls to an adult male and attempted to have the girls engage in sexual activity with
that adult male. The district court also determined that Brown did not take responsibility
and tried to use her divorce and depression as excuses. Finding that Brown was a danger
to society and noting the penological purpose of lifetime postrelease supervision was to
prevent Brown from committing similar crimes in the future, the district court granted the
State's motion and imposed lifetime postrelease supervision.

Brown timely appeals.

DID THE DISTRICT COURT ERR BY IMPOSING
LIFETIME POSTRELEASE SUPERVISION?

Brown claims that under § 9 of the Kansas Constitution Bill of Rights, her lifetime
postrelease supervision sentence is unconstitutionally disproportionate to the crimes for
which she was convicted. Brown asks us to find the imposition of lifetime postrelease
supervision for the crimes of aggravated indecent liberties with a child and indecent
liberties with a child unconstitutional.

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A. Brown's sentence is not prohibited by § 9 of the Kansas Constitution Bill of Rights.

Constitutional challenges to a statute ordinarily raise questions of law which are
subject to our unlimited review. State v. Seward, 289 Kan. 715, 718, 217 P.3d 443
(2009). When deciding whether a sentence is cruel or unusual under § 9 of the Kansas
Constitution Bill of Rights, a district court is required to make both legal and factual
determinations. See, e.g., State v. Ortega-Cadelan, 287 Kan. 157, 160-61, 194 P.3d 1195
(2008). On review, "an appellate court applies a bifurcated standard of review: All of the
evidence is reviewed, but not reweighed, to determine if there is sufficient support for the
district court's factual findings, and the district court's legal conclusions drawn from those
facts are reviewed de novo. [Citations omitted.]" State v. Mossman, 294 Kan. 901, 906,
281 P.3d 153 (2012).

Section 9 of the Kansas Constitution Bill of Rights states in part that "[e]xcessive
bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment
inflicted." Our Supreme Court has held that a sentence "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. To assist in making that
determination, the Freeman court set out the following three-factor test:

"(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
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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." 223 Kan. at 367.

A single factor does not control an appellate court's decision. Mossman, 294 Kan. at 908.

1. The first Freeman factor

Brown first argues that lifetime postrelease supervision is an unconstitutional
sentence because her crimes were nonviolent in that she did not use a weapon, did not
kidnap the victims, and did not place the victims in a position where they could lose their
lives. For the purposes of lifetime postrelease supervision, however, indecent liberties
with a child and aggravated indecent liberties with a child are considered sexually violent
crimes. See K.S.A. 2015 Supp. 22-3717(d)(5)(B) and (C). Such offenses—sex crimes
against minors—are generally recognized as "'particularly heinous crimes.''' Mossman,
294 Kan. at 909 (quoting People v. Dash, 104 P.3d 286, 293 [Colo. App. 2004]). Society
has a penological interest in punishing sex offenders because they are dangers to society
and their crimes cause harmful effects on victims, which is why the legislature has
determined to treat sex crimes against minors as violent felonies even if no physical force
is involved. See 294 Kan. at 909. We note that lifetime postrelease supervision has been
found constitutional in other cases where the defendants, like Brown, had been convicted
of aggravated indecent liberties with a child and argued their crimes were nonviolent. See
State v. Swint, 302 Kan. 326, 342-44, 352 P.3d 1014 (2015); State v. Spear, 297 Kan.
780, 800, 304 P.3d 1246 (2013); State v. Woodard, 294 Kan. 717, 280 P.3d 203 (2012).
As a result, the district court in this case correctly found that Brown's crimes were
sexually violent offenses.

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Further, the categorizing of Brown's crimes as violent sexual offenses
notwithstanding, the harmful effects of Brown's actions were evidenced by the victim
impact statements presented at her original sentencing hearing. A.M.S.'s mother testified
about the effects Brown's actions had on A.M.S. and that because of Brown's betrayal of
her trust, she can no longer trust her children with anyone. In a letter read to the district
court, A.M.S. said that her life was changed dramatically by Brown's crimes. B.D.R.'s
father testified that his girls' lives had been turned upside down and he could never
forgive Brown. B.D.R. testified about the destruction to her life that Brown caused.
Letters from B.D.R.'s stepmother and B.D.R.'s sister, in which they described the effect
of Brown's actions on their lives, were also read.

Brown also contends the district court erred by not considering that her divorce
and depression may have impaired her decision-making ability. But defense counsel
never made that argument to the district court. The record indicates, moreover, that the
district court did consider Brown's divorce and depression and determined that she
seemed to be using that event and condition as an excuse, showing that she did not
believe she was culpable. Brown also fails to provide any authority demonstrating that a
defendant's divorce or depression is relevant to a first Freeman factor analysis.

Finally, Brown claims the penological purposes of punishment are not served by
sentencing her to lifetime postrelease supervision because she has a low risk of
reoffending since she is a first-time offender. Brown, however, does not cite any case
where lifetime postrelease supervision for a first-time offender was found
unconstitutional, and our Supreme Court has noted that society has a penological interest
in punishing sex offenders partly because of the high risk of recidivism among such
defendants. See Mossman, 294 Kan. at 909-10. Therefore, the district court correctly
concluded that the first Freeman factor weighed against Brown.

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2. The second Freeman factor

Brown argues under the second Freeman factor that her sentence is
disproportionate to the crimes of which she was convicted. Because she committed what
she considers less severe crimes, she should have been subject to a shorter term of
postrelease supervision. Specifically, Brown claims that had she been convicted of
second-degree murder, aggravated kidnapping, aggravated trafficking, electronic
solicitation, or terrorism and illegal use of weapons of mass destruction, the maximum
duration of postrelease supervision that the district court could have imposed would have
been 36 months.

Brown's argument is nearly identical to one our Supreme Court addressed in
Mossman, 294 Kan. at 913, where the court noted that while the overall sentence for
someone convicted of second-degree murder may be shorter, a defendant sentenced to
lifetime postrelease supervision has the opportunity to serve most of the sentence "in a
less restrictive environment." The Mossman court also determined that lifetime
postrelease supervision was not disproportionate to the sentence a defendant could
receive for second-degree murder based on penological purposes, the seriousness of the
crime, and other first Freeman factor concerns. 294 Kan. at 917. It concluded that the
difference in proportionality between the two sentences did not cause the second
Freeman factor to outweigh the first. 294 Kan. at 917.

Brown essentially makes the same argument here. While Brown's overall sentence
may be longer than it would have been had she been convicted of one of the crimes listed
in her brief, she has the opportunity to serve the majority of her sentence outside of
prison. As in Mossman, the second Freeman factor does not outweigh the first Freeman
factor in this case. Absent some indication that our Supreme Court is departing from its
previous position, we are bound to follow its precedent. State v. Belone, 51 Kan. App. 2d
179, 211, 343 P.3d 128, rev. denied 302 Kan. ___ (September 14, 2015).
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3. The third Freeman factor

Browns argues her sentence is disproportionate under the third Freeman factor
because only five states, including Kansas, impose lifetime postrelease supervision for
the same offense. She also mentions that 13 other states—Iowa, Indiana, Louisiana,
Maine, Maryland, Minnesota, Missouri, Montana, Nebraska, Nevada, Oregon,
Tennessee, and Utah—impose mandatory lifetime postrelease supervision for crimes
other than the class of offenses in this case. But as before, Brown's argument is nearly
identical to the argument made in Mossman.

First, it is worth noting the Mossman court found that at least three other states
also impose lifetime postrelease supervision for the class of offenses similar to
aggravated indecent liberties with a child. 294 Kan. at 917-18. The court further found:

"[E]ven when adding the third Freeman factor into the equation and considering that
Kansas' provision is more severe than most other jurisdictions, we do not find the
sentence to be cruel or unusual. Mossman's offense is serious and is a sex crime against a
minor that historically has been treated as a forcible or violent felony regardless of
whether there is physical force. Mossman exhibited characteristics of poor impulse
control, rebelliousness, and a history of drug abuse. And legitimate penological goals—
retribution, deterrence, incapacitation, and rehabilitation—are furthered by lifetime
postrelease supervision. These factors outweigh the lack of strict proportionality with
other sentences in Kansas and other jurisdictions, especially given that the sentence is not
grossly disproportionate." 294 Kan. at 920-21.

In State v. Toahty-Harvey, 297 Kan. 101, 298 P.3d 338 (2013), the defendant—
who pled nolo contendere to aggravated indecent liberties with a child—made arguments
against lifetime postrelease supervision similar to those made in Mossman without
providing any new reasoning. Our Supreme Court, relying on the holding of Mossman,
affirmed defendant's lifetime postrelease supervision. Toahty-Harvey, 297 Kan. at 109.
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Because our Supreme Court is not departing from its position in Mossman, we are bound
to follow that reasoning. See Belone, 51 Kan. App. 2d at 211.

Similarly, Brown committed sex crimes against minors. Brown does not explain
how her case is different than Mossman or provide any new argument under the third
Freeman factor. Accordingly, the third Freeman factor also weighs against Brown. Thus,
based on clear precedent found in Mossman and the serious and heinous nature of
Brown's offenses, the district court did not err in finding Brown's lifetime postrelease
supervision sentence constitutional under § 9 of the Kansas Constitution Bill of Rights.

B. Brown has waived any claim that her sentence is categorically unconstitutional
under the Eighth Amendment.

Brown also claims for the first time on appeal that lifetime postrelease supervision
is categorically disproportionate, according to the Eighth Amendment, in sex offense
cases where physical contact did not occur.

Generally, an issue not raised before the district court cannot be raised for the first
time on appeal. State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). Three recognized
exceptions to this general rule exist. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095
(2014). To claim one of those exceptions, though, an appellant must explain why an issue
not raised before the district court should be considered for the first time on appeal. Rule
6.02(a)(5) (2015 Kan. Ct. R. Annot. 41); State v. Williams, 298 Kan. 1075, 1085-86, 319
P.3d 528 (2014). Kansas appellate courts are to strictly enforce this rule; if an appellant
does not comply, then the issue is deemed waived and abandoned for failure to brief it.
State v. Godfrey, 301 Kan. 1041, 1043-44, 350 P.3d 1068 (2015).

At the hearing on the State's motion to correct an illegal sentence, Brown argued
that lifetime postrelease would be cruel and/or unusual punishment under Freeman.
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Defense counsel made no categorical argument and never mentioned the Eighth
Amendment. As a result, Brown is raising this issue for the first time on appeal.
However, Brown does not explain why this issue should be considered even though it
was not raised before the district court. Thus, according to Rule 6.02(a)(5), Brown has
waived and abandoned any argument that lifetime postrelease supervision is categorically
unconstitutional by failing to brief it. See Godfrey, 301 Kan. at 1044.

In State v. Reyna, No. 112,350, 2015 WL 5311918, at *3 (Kan. App. 2015)
(unpublished opinion), petition for rev. filed October 7, 2015, another panel of this court
chose to consider a categorical Eighth Amendment challenge even though the argument
was not made to the district court, noting that the Supreme Court had done so in
Williams, 298 Kan. 1075. But the Williams court had allowed the categorical challenge to
be raised for the first time on appeal without any explanation from the party only because
that claim had been permissibly raised in the past and the rule had not been strictly
enforced. See 298 Kan. at 1085. The Williams court then went on to say it was unwilling
to ignore the plain language of Rule 6.02(a)(5), and future litigants should comply with
the rule or risk the issue being deemed waived and abandoned. 298 Kan. at 1085-86. This
edict was reaffirmed more than a year later in Godfrey, 301 Kan. at 1044, where the court
stated that sufficient time had passed since its warning in Williams that Rule 6.02(a)(5)
would be strictly enforced and litigants had no excuse for noncompliance.

Brown presents no explanation as to why this court should consider her categorical
argument for the first time on appeal. Therefore, Brown's argument that lifetime
postrelease supervision for sex offenses where physical contact did not occur is
categorically unconstitutional under the Eighth Amendment is deemed waived and
abandoned. However, even if we considered Brown's categorical challenge on the merits,
we would reject her arguments as our Supreme Court has already rejected similar
categorical challenges where the crimes did not involve a touching. See Williams, 298
Kan. at 1089-90 (possessing an electronic recording depicting child engaging in sex acts);
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State v. Cameron, 294 Kan. 884, 896-98, 281 P.3d 143 (2012) (aggravated indecent
solicitation of a child).

Affirmed.