State v. Sananikone

1

NOT DESIGNATED FOR PUBLICATION

No. 115,340

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CHITTALAT E. SANANIKONE,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; WARREN M. WILBERT, judge. Opinion filed June 9, 2017.
Affirmed.

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

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before ARNOLD-BURGER, C.J., ATCHESON and BRUNS, JJ.

Per Curiam: Defendant Chittalat E. Sananikone contends the Sedgwick County
District Court erred in changing the period of postrelease supervision for his conviction
of attempted aggravated indecent liberties with a child from 24 months to the rest of his
life. He also argues that lifetime postrelease supervision amounts to categorically cruel
and unusual punishment for the crime, rendering the punishment unconstitutional. We
reject Sananikone's challenges and affirm the district court.

2

The State charged Sananikone with aggravated indecent liberties with a child
based on an incident that occurred on September 22, 2006, and involved a 14-year-old
girl who lived in his neighborhood. About 9 months later, Sananikone pleaded guilty to
an amended charge of attempted aggravated indecent liberties with a child. In late 2007,
the district court sentenced Sananikone to serve 136 months in prison and placed him on
postrelease supervision for 24 months. In 2015, someone—it's not entirely clear from the
record who—flagged the period of postrelease supervision as incorrect.

The district court held a hearing on August 14, 2015, and found that the version of
K.S.A. 22-3717(d)(1)(G) in effect when Sananikone committed the crime imposed
lifetime postrelease supervision for attempted aggravated indecent liberties with a child.
Acting on the authority accorded district courts to correct illegal sentences at any time, as
provided in K.S.A. 22-3504(1), the district court revised Sananikone's sentence to include
lifetime postrelease supervision. See State v. Sims, 294 Kan. 821, Syl. ¶ 3, 280 P.3d 780
(2012) (illegal sentence for purposes of K.S.A. 22-3504 includes one that fails to conform
to the law in character or term). Sananikone has appealed that ruling.

First, Sananikone contends the 24-month period of postrelease supervision was not
an illegal sentence based on the interplay of K.S.A. 22-3717(d)(1)(B), (d)(1)(D), and
(d)(1)(G). According to Sananikone, the district court, therefore, did not have the
authority to act. But K.S.A. 22-3717(d)(1)(G) is the most specific provision, and it
plainly imposes mandatory lifetime postrelease supervision for persons convicted of
specified sex offenses, including attempted aggravated indecent liberties with a child,
committed after July 1, 2006. The introductory language in K.S.A. 22-3717(d)(1) carves
out subsection (d)(1)(G) from the more general provisions on postrelease supervision in
subsections (d)(1)(B) and (d)(1)(D). This court considered and rejected the same
argument Sananikone makes in State v. Herrmann, 53 Kan. App. 2d 147, 152-54, 384
P.3d 1019 (2016), petition for rev. filed December 19, 2016. We find the detailed analysis
in Herrmann persuasive and readily adopt it. That disposes of Sananikone's first point.
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Sananikone alternatively argues that lifetime postrelease entails a categorically
cruel and unusual punishment for persons convicted of attempted aggravated indecent
liberties with a child and, therefore, violates the Eighth Amendment to the United States
Constitution. In making a categorical challenge, a criminal defendant argues a
punishment to be so severe for the offense or for a broad class of offenders as to be
constitutionally unacceptable in every instance. Graham v. Florida, 560 U.S. 48, 60-61,
130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010); State v. Williams, 298 Kan. 1075, 1086, 319
P.3d 528 (2014); State v. Mossman, 294 Kan. 901, 927-28, 281 P.3d 153 (2012). The
Kansas Supreme Court has rejected a categorical constitutional challenge to lifetime
postrelease supervision for a first-time sex offender convicted of aggravated indecent
liberties with a child. Mossman, 294 Kan. 901, Syl. ¶ 9.

Sananikone says Mossman should be distinguished because the defendant there
was convicted of the completed crime, while the crime of conviction here was an attempt.
We do not see a sufficient legal distinction to recognize a categorical violation of the
Eighth Amendment in light of Mossman.

Under Kansas law, an attempt entails "any overt act" by a person harboring the
intent to commit a particular crime but who fails in its commission or "is prevented or
intercepted" in carrying out the crime. K.S.A. 2016 Supp. 21-5301(a). There are a
number of ways a person might fail to complete the crime of aggravated indecent liberties
with a child, resulting in an attempt. In a categorical challenge, we are unconcerned about
the particular reason the crime may have failed in a given defendant's case and ask
whether the challenged punishment would be constitutionally permissible for some form
of attempt. The circumstances here actually serve to illustrate how close an attempt may
be to a completed act. Sananikone admitted during his guilty plea that he intended to have
sexual intercourse with a 14-year-old girl and failed in doing so only because he could
not insert his penis into her vagina.
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A defendant, such as Sananikone, who attempts to engage in aggravated indecent
liberties with a child, by definition, has the requisite bad intent or mens rea for the
completed crime. So, to that extent, the defendant is indistinguishable from the defendant
guilty of the completed offense. Typically, however, a defendant guilty of only an
attempt faces a shorter presumptive period of imprisonment because the full harm
associated with the completed crime has not come to pass. Sananikone received that sort
of break, since the completed crime would have been a severity level 3 person felony, as
provided in K.S.A. 21-3504, and the attempt was a severity level 5 person felony.

Postrelease supervision operates in conjunction with incarceration and serves the
same overall penological objectives of retribution, deterrence, incapacitation, and
rehabilitation. Mossman, 294 Kan. at 912. But postrelease supervision focuses more
directly on rehabilitation and deterrence. The required period of postrelease supervision,
therefore, links to the nature of the crime and the motive and intent that may have
prompted it. In that respect, Mossman recognized the "'propensity of sex offenders to
strike again'" and the importance of continuing supervision in preventing recidivism
among those offenders released from prison. 294 Kan. at 930 (quoting United States v.
Williams, 636 F.3d 1229, 1234 [9th Cir.], cert. denied 565 U.S. 856 [2011]). Those
considerations are similarly applicable to offenders convicted of completed sex crimes
and offenders convicted of attempts to commit those same crimes, since an identically
antisocial intent animates their actions. And the court acknowledged a national consensus
consistent with that sort of postrelease monitoring of convicted sex offenders. 294 Kan. at
930; see also Williams, 298 Kan. at 1089-90 (rejecting categorical challenge to lifetime
postrelease supervision for defendant convicted of possession of child pornography);
State v. Hindman, No. 110,261, 2014 WL 5312925, at *6-7 (Kan. App. 2014)
(unpublished opinion) (rejecting categorical challenge to lifetime postrelease supervision
for attempted indecent liberties with a child), rev. denied 302 Kan. 1015 (2015).

5

Based on that authority, we decline to find lifetime postrelease supervision to be
categorically unconstitutional as punishment for attempted aggravated indecent liberties
with a child.

Affirmed.