State v. Comstock

1

NOT DESIGNATED FOR PUBLICATION

No. 115,589

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

LARRY JAY COMSTOCK,
Appellant.

MEMORANDUM OPINION

Appeal from Shawnee District Court; CHERYL KINGFISHER. Opinion filed March 3, 2017.
Affirmed.

Peter Maharry, of Kansas Appellate Defender Office, for appellant.

Kendall Kaut, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before MCANANY, P.J., MALONE, J., and STUTZMAN, S.J.

Per Curiam: Larry Jay Comstock appeals the district court's imposition of
lifetime postrelease supervision. In July 2010, Comstock was charged with five counts of
sexual exploitation of a child after the FBI seized his computer which contained
pornographic images of children. The State later amended the complaint to electronic
solicitation of a child and three counts of sexual exploitation of a child. The parties
reached a plea agreement which resulted in Comstock entering an Alford plea to the
amended charges in March 2011. Before his sentencing, Comstock moved to dismiss his
court-appointed attorney. The district court denied Comstock's motion in September 2011
and sentenced him to a controlling prison term of 240 months with lifetime postrelease
supervision.
2

On appeal, a panel of this court held the district court erred in denying Comstock's
motion, vacated his sentence, and remanded for resentencing. State v. Comstock, No.
107,467, 2013 WL 1234224, at *4 (Kan. App. 2013) (unpublished opinion). On remand,
Comstock withdrew his original plea and pled no contest to the further amended charges
of attempted sexual exploitation of a child and three counts of sexual exploitation of a
child.

At his sentencing hearing in August 2014, Comstock, a first-time offender with no
criminal history, argued that the imposition of lifetime postrelease supervision was
unconstitutional based on State v. Proctor, 47 Kan. App. 2d 889, 280 P.3d 839 (2012),
rev'd and remanded by Supreme Court order June 19, 2013; see State v. Proctor, No.
104,699, 2013 WL 6726286 (Kan. App. 2013) (unpublished opinion). The district court
rejected this argument, sentenced Comstock to a controlling prison term of 209 months,
and ordered lifetime postrelease supervision. Comstock's appeal of the imposition of
lifetime postrelease supervision brings the matter before us.

This court issued a show-cause order asking Comstock why his case was not
controlled by State v. Williams, 298 Kan. 1075, 319 P.3d 528 (2014), and, in turn, why
his appeal should not be summarily affirmed under Supreme Court Rule 7.041 (2017
Kan. S. Ct. R. 47). Comstock responded that Williams did not control because it did not
involve a first-time attempted sex offender such as Comstock. We retained the appeal but
now, on further review, conclude that Comstock's case is legally indistinguishable from
Williams and should be affirmed.

Comstock argues that lifetime postrelease supervision for his crimes constitutes a
cruel and unusual punishment under the Eighth Amendment to the United States
Constitution. He confines his Eighth Amendment claim to a categorical proportionality
challenge. As such, his claim raises only a question of law over which we have unlimited
review. See State v. Mossman, 294 Kan. 901, 925, 281 P.3d 153 (2012).
3

In Williams, the defendant pled guilty to sexual exploitation of a child. The district
court imposed lifetime postrelease supervision. On appeal, Williams argued the
imposition of lifetime postrelease supervision was "unconstitutionally disproportionate as
applied to first-time offenders over age 18 convicted of crimes involving possession of
pornographic images of a person under age 18." 298 Kan. at 1086. Our Supreme Court
rejected Williams' argument and held: "Lifetime postrelease supervision for a first-time
offender over age 18 convicted of sexual exploitation of a child for crimes involving
possession of pornographic images of children under age 18 is not categorically
disproportionate under the Eighth Amendment." 298 Kan. 1075, Syl. ¶ 8.

Comstock contends Williams was wrongly decided. But Williams is a decision by
our Supreme Court, and we are duty bound to follow it absent some indication that the
court is departing from it. State v. Belone, 51 Kan. App. 2d 179, 211, 343 P.3d 128, rev.
denied 302 Kan. 1012 (2015). We find no such indication, and Comstock does not point
to one. Thus, we are duty bound to follow Williams.

In order to factually distinguish his case from Williams, Comstock points out that
one of his convictions was for an attempted crime rather than a completed one. (He
ignores the fact that he also pled to three counts of the completed crime of sexual
exploitation of a child.) In any event, we have rejected the contention that the "attempt"
nature of a conviction changes the categorical proportionality analysis provided in
Williams. See State v. Reed, 51 Kan. App. 2d 107, 112-13, 341 P.3d 616 (2015)
(attempted aggravated indecent liberties with a child is subject to lifetime postrelease
supervision), rev. denied 304 Kan. 1021 (2016); State v. Hindman, No. 110,261, 2014
WL 5312925, at *6-7 (Kan. App. 2014) (unpublished opinion) (attempted indecent
liberties with a child is subject to lifetime postrelease supervision), rev. denied 302 Kan.
1015 (2015); State v. Russell, No. 107,588, 2013 WL 3867180, at *4-5 (Kan. App. 2013)
(unpublished opinion) (attempted aggravated solicitation of a child is subject to lifetime
postrelease supervision), rev. denied 299 Kan. 1273 (2014); State v. Barrera, No.
4

104,664, 2013 WL 517581, at *9 (Kan. App. 2013) (unpublished opinion) (attempted
rape is subject to lifetime postrelease supervision), rev. denied 297 Kan. 1248 (2013).
Thus, Comstock's claimed factual distinction is one without a difference. The district
court did not err in imposing lifetime postrelease supervision.

Affirmed.