State v. Scott

NOT DESIGNATED FOR PUBLICATION

No. 114,163

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CHASE DALTON SCOTT,
Appellant.


MEMORANDUM OPINION

Appeal from Butler District Court; DAVID A. RICKE, judge. Opinion filed June 10, 2016.
Affirmed.

Adam D. Stolte, of Kansas Appellate Defender Office, for appellant.

Cheryl M. Pierce, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

Before GARDNER, P.J., LEBEN, J., and HEBERT, S.J.

Per Curiam: Chase Dalton Scott pled guilty to two counts of indecent liberties
with a 14- or 15-year-old child and one count of possession of marijuana. He was
sentenced to 32 months in prison for each count of indecent liberties and a year in jail, all
to run at the same time. The district court also ordered Scott to register as a sex offender
for 25 years and imposed lifetime postrelease supervision.

On appeal, Scott contends that lifetime postrelease supervision constitutes cruel or
unusual punishment in violation of section 9 of the Kansas Constitution Bill of Rights
and the Eighth Amendment to the United States Constitution. To determine whether a
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sentence is cruel or unusual, the district court must consider three factors: (1) the nature
of the crime and character of the offender; (2) how the punishment for the crime at hand
compares with other serious crimes in Kansas; and (3) how other jurisdictions punish the
same crimes. State v. Funk, 301 Kan. 925, 935-43, 349 P.3d 1230 (2015); State v.
Mossman, 294 Kan. 901, 908, 281 P.3d 153 (2012); State v. Freeman, 223 Kan. 362, 367,
574 P.2d 950 (1978).

In a nine-page written decision, the district court in Scott's case carefully
considered these factors and concluded that Scott's sentence was not grossly
disproportionate with his crime given the facts of Scott's offense and the nature of his
character. We find no error in the district court's analysis, and we affirm its judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On December 3, 2014, J.R.G., then 14 years old, was reported as a runaway. The
next day, police officers went to look for her at Austin Edwards' house, but Edwards said
that she was at Scott's house. Officers then went to speak to Scott. He told them that he
had not seen J.R.G. since the day before at McDonald's, but an officer caught J.R.G.
sneaking out the back door. While at the house, the police noticed a small pipe with burn
residue, which they believed was used for smoking marijuana.

Police then arrested Scott on a warrant for another matter. When questioned, Scott
said that Edwards had brought J.R.G. to his house on December 3. They had remained
inside except for taking a walk after dark. According to Scott, the three had smoked
marijuana, and J.R.G. had then performed oral sex on him and Edwards. Scott also
admitted to having sexual intercourse with J.R.G. three times. He told police that he knew
J.R.G. through Facebook and had met her only briefly before at McDonald's.

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The State charged Scott with three counts of aggravated indecent liberties with a
child who was 14 or 15 years old (one for each allegation of sexual intercourse), one
count of criminal sodomy with a child who was 14 or 15 years old, one count of
possession of marijuana, and one count of possession of drug paraphernalia. Under the
terms of a plea agreement, Scott pled guilty to lesser charges—two counts of indecent
sexual liberties with a child of 14 or 15 years involving lewd fondling or touching and
one count of possession of marijuana. As part of the plea, Scott acknowledged touching
J.R.G.'s breasts, vagina, and bottom with his hands and penis.

Because Scott had only one prior misdemeanor conviction (for possession of
marijuana), the court determined his criminal-history score to be an I, the lowest possible
score. See K.S.A. 2015 Supp. 21-6809. Most sentences in Kansas are determined by a
sentencing grid that is based on the seriousness of the offense and the defendant's
criminal-history score. For the indecent-liberties convictions, Scott was in the border-box
sentencing range, meaning he would be sentenced to prison unless the district court made
certain findings in favor of probation. See K.S.A. 2015 Supp. 21-6804(f); K.S.A. 2015
Supp. 21-6804(q). Scott argued that he should be placed on probation, given that he had
only a low-to-moderate risk of recidivism and would be amenable to sex-offender
treatment. But the district court imposed the standard sentence of 32 months in prison for
each count of indecent liberties with a child and 1 year in jail for marijuana possession,
all to run at the same time. The district court also directed that Scott register as a sex
offender for 25 years after serving his sentence.

The direction to register as a sex offender for 25 years comes from K.S.A. 2015
Supp. 22-3717(d)(1), which also provides that that defendants convicted of "sexually
violent" crimes must be sentenced to lifetime postrelease supervision. Another subsection
of the same statute, K.S.A. 2015 Supp. 22-3717(d)(5)(B), provides that "indecent liberties
with a child" is a sexually violent crime for purposes of the lifetime-postrelease-
supervision requirement. Mandatory lifetime postrelease supervision generally requires
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that the person not commit any new crimes and includes conditions such as paying
restitution or other costs, reporting to a supervising officer, performing community
service, and abiding by any other special conditions. Mossman, 294 Kan. at 904.

At sentencing, Scott argued that imposing lifetime postrelease supervision would
be unconstitutional as cruel or unusual punishment given his young age and proximity in
age to J.R.G., his belief that J.R.G. had been older and had consented to the sexual
activity, and the potential risk of life in prison if he ever committed another felony. See
K.S.A. 2015 Supp. 75-5217(c). The State pointed out that Kansas law considers indecent
liberties with a child to be a sexually violent crime and argued that Scott knew J.R.G. was
a runaway and supplied her with alcohol and marijuana. The State contended that lifetime
postrelease supervision was appropriate given that Scott had taken advantage of a 14-
year-old who, because of her age, couldn't legally consent to sexual activity. At the close
of the sentencing hearing, the district court requested that both parties submit proposed
findings of fact to help it determine whether imposing lifetime postrelease supervision
would constitute cruel or unusual punishment.

In its written ruling, the district court determined that lifetime postrelease
supervision would not constitute cruel or unusual punishment under the Kansas
Constitution or United States Constitution. Scott then appealed to our court. We will
review the reasons the district court cited for its conclusion—and Scott's arguments of
error—in the next section of our opinion.

ANALYSIS

Scott argues that the imposition of lifetime postrelease supervision violates U.S.
and Kansas constitutional provisions prohibiting cruel or unusual punishment. In
determining whether a sentence is cruel or unusual under the Eighth Amendment to the
United States Constitution and section 9 of the Kansas Constitution Bill of Rights, the
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district court must make both factual and legal determinations. State v. Seward, 296 Kan.
979, 981, 297 P.3d 272 (2013). On appeal, we review the district court's factual findings
to determine whether substantial evidence supports them. We review its legal conclusions
independently, with no required deference to the district court. Funk, 301 Kan. at 933.

These constitutional provisions differ only in their use of "and" and "or": The
Eighth Amendment to the United States Constitution prohibits "cruel and unusual
punishment"; section 9 of the Kansas Constitution Bill of Rights prohibits "cruel or
unusual punishment." We will consider the caselaw that has interpreted each provision.

Under the Eighth Amendment, defendants may raise two types of challenges: (1) a
case-specific challenge in which the defendant claims the length of his or her sentence is
grossly disproportionate to the offense given all the circumstances of the case; or (2) a
categorical challenge in which the defendant asserts that a particular punishment is
inherently disproportionate for a specific class of offenders (e.g., juveniles or those with
intellectual disabilities). Graham v. Florida, 560 U.S. 48, 59-61, 130 S. Ct. 2011, 176 L.
Ed. 2d 825 (2010). Scott makes case-specific challenges under both section 9 and the
Eighth Amendment; he does not raise a categorical challenge.

The Kansas Supreme Court has said that its method for analysis of a section 9
challenge "'applies with equal force'" to a case-specific Eighth Amendment challenge.
Seward, 296 Kan. at 990. Nevertheless, there may be some slight differences between
how the Kansas Supreme Court evaluates claims under the Kansas Constitution and how
the United States Supreme Court treats claims under the Eighth Amendment. See
Mossman, 294 Kan. at 922-24. Because Scott has predominantly made arguments under
the Kansas Constitution, we begin our analysis there.

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Section 9 of the Kansas Constitution Bill of Rights

A review of the modern analysis of section 9 begins with our Supreme Court's
1979 decision in Freeman. The court said that a punishment could violate section 9, even
if "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." 223 Kan. at 367. The court set out a test using three factors, now called the
Freeman factors, to analyze the issue:

"(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
punished less severely than the offense in question the challenged penalty is to that extent
suspect; and

"(3) A comparison of the penalty in other jurisdictions for the same offense." 223
Kan. at 367.

Our Supreme Court continues to rely on the Freeman factors to determine whether
a sentence is so disproportionate as to be cruel or unusual. Funk, 301 Kan. at 935;
Mossman, 294 Kan. at 908. No one factor is controlling, and courts should consider each
prong of the test, but one factor may weigh so heavily in a specific case that it determines
the outcome. Funk, 301 Kan. at 935. In considering the proportionality of a sentence, or
how well the punishment fits the crime, the case-specific facts are a "'"necessary part of
the overall analysis."'" 301 Kan. at 935 (quoting Mossman, 294 Kan. at 908).

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Freeman Factor 1: Nature of the Offense and Character of the Offender

Based on the charges in the case, the district court characterized the nature of the
offense as sexual intercourse with a 14-year-old female, even though Scott was convicted
of lewd touching. The district court concluded that sexual activity with a 14-year-old,
whether intercourse or lewd touching, is a "serious crime." The court noted that indecent
liberties with a child is by definition a "sexually violent crime," see K.S.A. 2015 Supp.
22-3717(d)(5)(B), which merits lifetime postrelease supervision. The Kansas Supreme
Court in other cases has specifically agreed with the district court's characterization of
sexual activity with a minor as a serious offense. See Funk, 301 Kan. at 940; Mossman,
294 Kan. at 909-10.

The district court then discussed Scott's character, drawing from a psychological
evaluation performed by Dr. Jarred Steffan. According to the court, the evaluation noted
that Scott was "19 years old (at that time), of borderline to low intelligence and was
sexually promiscuous." Dr. Steffan did not diagnosis Scott with pedophilia or
psychopathy but instead viewed the sexual offense as "'a reflection of his pleasure and
sensation seeking lifestyle marked by substance dependence, compromised judgment,
poor problem solving and life skills, and intimacy deficits.'" The evaluation also said that
with appropriate interventions, Scott had a low-to-moderate risk of reoffending and "'a
favorable prognosis for improvement.'" According to the evaluation, Scott had no history
of childhood abuse or neglect but did have a history of marijuana and methamphetamine
use.

The district court also noted several troubling aspects involving Scott's character:
 Scott "attributed the illegal sexual encounter to the 14 year old victim, indicating
that she was a willing and cooperative participant and that she initiated the sexual
relations."
 Scott did not attempt to verify J.R.G.'s age before having sex with her.
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 While the court noted that Scott had expressed regret for having sexual relations
with J.R.G. and empathy toward her for any adverse effects he may have caused,
the court characterized his behavior as "'casual, uncaring and detached.'" It further
observed that the crime involved "the exploitation of a known runaway" and
subjected J.R.G. "to the risks of pregnancy and venereal disease, as well as other
particularly devastating effects including psychological harm or other physical
harm."

The court concluded that the first Freeman factor weighed in favor of imposing
lifetime postrelease supervision: "Scott's individual characteristics place him into a
category of offender who present a special problem and concern for society and therefore,
he must be watched closely during . . . the remainder of his life . . . ."

On appeal, Scott maintains that the district court wrongly determined that the first
Freeman factor weighed in favor of imposing postrelease supervision. He again contends
that he had believed he was engaging in consensual sex with an adult when he had sex
with J.R.G. And he emphasizes that he did not have a violent past or history of sexual
misconduct, had not been diagnosed as having either pedophilic or psychopathic
behaviors, and had a favorable prognosis for improvement with treatment.

Scott argues that some of the district court's reasoning is unsupported or
unreasonable. In particular, he rejects the court's implication that he should have tried to
verify J.R.G.'s age because "it is unreasonable to require teenagers to have the requisite
knowledge to verify age from a valid ID." He notes that nothing in the record proves
whether he specifically knew that J.R.G. was a runaway, in response to the court's
contention that he exploited a "known runaway." Finally, he contests the relevance of the
court's assertion that he subjected J.R.G. to risks of pregnancy and disease, given that
sexual intercourse naturally exposes participants to those risks. He contends the court
should assume that the severity level of the offense takes the risk of harm into account.
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As to whether Scott exploited a "known runaway," the court's claim that he did is
unsupported. The State had alleged that Scott knew J.R.G. was a runaway during the
sentencing hearing, but that allegation was not addressed or substantiated in the district
court's factual findings. Scott does not argue that any of the district court's other findings
are unsupported, so we regard the remainder of the district court's factual findings as
supported by substantial evidence. See Funk, 301 Kan. at 936; State v. Reed, 300 Kan.
494, Syl. ¶ 5, 332 P.3d 172 (2014) ("An issue not briefed by an appellant is deemed
waived and abandoned.").

Scott's claim that he believed J.R.G. was 18 years old at the time is a factual
question that was not resolved by the district court, so it cannot factor into the analysis on
appeal. Our Supreme Court faced the same situation in Funk, where it said that the
defendant's belief that victim was 16 was "a fact question left unresolved by the district
court and therefore cannot factor into our analysis." Funk, 301 Kan. at 940; see also State
v. Seward, 289 Kan. 715, 720-21, 217 P.3d 443 (2009) (noting the general rule that a
litigant who fails to object to inadequate findings and conclusions cannot make appellate
argument based on what is missing), disapproved on other grounds by State v. Jolly, 301
Kan. 313, 342 P.3d 935 (2015).

Scott's contention that J.R.G. consented or actively participated in the sexual
contact is unpersuasive. In Mossman, the Kansas Supreme Court rejected a similar
argument that the 15-year-old victim encouraged and willingly participated in the sexual
activity, noting that Kansas law treats those under 16 as being legally incapable of
consenting to sex and that an adult "who comes in contact with a minor, even a seemingly
mature minor, is expected to protect the child from the child's poor judgment, not take
advantage of that poor judgment." 294 Kan. at 910.

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Scott is no doubt correct that some aspects of the potential harm to a child victim
of a sex crime are among the reasons that the crime's prison sentence and severity level
are significant. But that doesn't mean we ignore harm to the victim in the Freeman-factor
analysis; to the contrary, we may consider the risk of psychological or physical harm to
the victim in considering whether lifetime postrelease supervision is proportionate to the
nature of the offense. See Funk, 301 Kan. at 940 (citing Mossman, 294 Kan. at 909);
State v. Toahty-Harvey, 297 Kan. 101, 107-08, 298 P.3d 338 (2013) (noting potential of
psychological harm from sexual trauma).

In asserting that the district court was wrong when it determined that the first
Freeman factor weighed in favor of imposing lifetime postrelease supervision, Scott also
relies on a comparison between his case and State v. Proctor. See State v. Proctor, 47
Kan. App. 2d 889, 280 P.3d 839 (2012) (Proctor I); and State v. Proctor, No. 104,697,
2013 WL 6726286, at *1 (Kan. App. 2013) (unpublished opinion) (Proctor II), rev.
denied 299 Kan. 1273 (2014). In that case, a panel of this court held that a defendant's
sentence to lifetime postrelease supervision in an aggravated-indecent-solicitation case
was unconstitutional under section 9 of the Kansas Constitution and the Eighth
Amendment to the U.S. Constitution. Proctor I, 47 Kan. App. 2d at 889. The Kansas
Supreme Court summarily reversed the case and remanded to the Court of Appeals in
light of new caselaw, but our court issued a new opinion reaching the same result.
Proctor II, 2013 WL 6726286, at *1.

In Proctor, the defendant was 19 years old and had on multiple occasions "'cajoled
[a 12-year-old boy] into having manual and oral contact with [his] penis.'" Proctor II,
2013 WL 6726286, at *2. In finding that the first Freeman factor weighed in Proctor's
favor, the Proctor court relied on several factors: the district court's determination to
impose probation rather than imprisonment, the prospect of a lifetime prison sentence for
any future felony conviction, Proctor's young age and lack of criminal record, the lack of
evidence that he had previously sexually abused anyone, and Proctor's own history as a
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victim of sexual abuse during adolescence and lack of professional help to cope with that
trauma. 2013 WL 6726286, at *4-5. The Proctor court distinguished other cases that
found the first Freeman factor weighed against defendants convicted of sex crimes by
noting that the other defendants were older, had not been victims of sexual abuse
themselves, and "plainly were not replicating conduct that had been directed toward
them." 2013 WL 6726286, at *5. The court emphasized that its determination relied
heavily on the district court's decision to place Proctor on probation, which reflected the
district court's determination that Proctor would benefit more from counseling and
treatment than imprisonment and that he would not jeopardize public safety by being out
in the community. 2013 WL 6726286, at *4-5. The court noted that "[t]he circumstances
would be different if Proctor had juvenile adjudications or criminal convictions for
serious offenses." 2013 WL 6726286, at *5.

The holding in Proctor II remains a narrow exception to the overwhelming
majority of cases that hold the first Freeman factor weighs in favor of imposing lifetime
postrelease supervision. See, e.g., Mossman, 294 Kan. at 912; State v. Cameron, 294
Kan. 884, 892, 281 P.3d 143 (2012). It's not clear how many of the special factors listed
in Proctor II must apply to a case to shift the weight of the first Freeman factor the other
way, as no other cases have reached the same result. See, e.g., Funk, 301 Kan. at 937-38;
State v. Riffe, No. 113,746, 2016 WL 937869, at *9-13 (Kan. App. 2016) (unpublished
opinion) (reversing district court's decision that relied on Proctor I when none of the
factors applied); State v. Long, No. 111,720, 2015 WL 2136628, at *4 (Kan. App. 2015)
(unpublished opinion) (declining to extend Proctor II because 18-year-old defendant had
adjudication for sex offense, he wasn't a victim of sexual abuse himself, and the court
imposed prison rather than probation).

In State v. Funk, for example, the Kansas Supreme Court determined that Proctor
II couldn't apply because the defendant had failed to present evidence of his risk of
recidivism or background and had a serious criminal conviction (burglary) on his record.
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301 Kan. 925, 937-41, 349 P.3d 1230 (2015). Funk was young (18 or 19 years old) and
had engaged in sexual activity (oral sex) with a 14-year-old girl after the two had been
drinking and doing drugs with Funk's other friends. The court stated that without the
necessary evidence of Funk's character and the district court's factual findings based on
that evidence, it would "adhere to our previous observation that '[p]ostrelease supervision
is largely designed to act as a deterrent to future crime, a goal that is particularly
legitimate given sex offenders' higher rate of recidivism.'" 301 Kan. at 939 (quoting
Mossman, 294 Kan. 901, 911, 281 P.3d 153 [2012]).

The Kansas Supreme Court has upheld sentences of lifetime postrelease
supervision in a case in which the defendant presented a lack of criminal history, low risk
of committing a similar crime, acceptance of responsibility for criminal conduct, and an
appropriate level of remorse. Mossman, 294 Kan. at 911-12. In Mossman, the 25-year-old
defendant engaged in a sexual relationship with a 15-year-old and was convicted of
aggravated indecent liberties for sexual intercourse with a child of 14 or 15. After noting
the factors in Mossman's favor, the court also noted that the psychological evaluator had
expressed concern about Mossman's lack of impulse control and rebellious nature.
Ultimately, the court concluded that the first Freeman factor weighed in favor of
imposing lifetime postrelease supervision because of the seriousness of the crime;
Mossman's disregard of the victim's age even though he knew she was a minor; his lack
of impulse control and rebellious nature; and the purposes of lifetime supervision,
including retribution, deterrence, incapacitation, and rehabilitation. 294 Kan. at 912.

Scott also cites State v. Dull, 302 Kan. 32, 351 P.3d 641 (2015), cert. denied 136
S. Ct. 1364 (2016), to support his argument. In Dull, the Kansas Supreme Court found
that mandatory lifetime postrelease supervision is always cruel and unusual punishment
for juveniles, in part because juveniles' diminished culpability, immaturity, recklessness,
poor decision-making skills, and lower risks of recidivism all diminish the punishment
goals of lifetime supervision. 302 Kan. at 60-61. Scott contends that even though he was
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not legally a minor, given his young age and resulting immaturity, the reasons in Dull
apply to him as well. But even though maturity may not be fully realized when a person
turns 18, turning 18 reflects an important legal milestone: "The law clearly presumes that
people 18 years of age or older have reached a level of maturity that renders them fully
culpable for the crimes they commit." State v. Ruggles, 297 Kan. 675, 685, 304 P.3d 338
(2013) (rejecting Eighth Amendment categorical challenge to "hard 25" life sentence for
soliciting child under age 14 to engage in lewd fondling or touching).

With all of these cases in mind, we return to Scott's argument that he, like the
defendant in Proctor, should not be subjected to lifetime supervision. In Scott's favor, he
was only 19 when he committed the offense and had very little criminal history—one
misdemeanor conviction for marijuana. The district court recognized that he had a
favorable prognosis and would be "amenable to treatment." On the other hand, the court
noted that he had a "'pleasure and sensation seeking lifestyle,'" substance-abuse issues,
compromised judgment, and poor problem-solving and life skills. These characteristics
resemble the defendant in Mossman, who lacked impulse control and had a rebellious
nature—although Mossman was older (in his mid-20s), and the evaluator's
characterization of Scott probably describes many 19-year-olds. While Scott had
expressed remorse about the crime, the district court described him as uncaring and
detached and noted that he blamed J.R.G. for the illegal sexual activity. Unlike the
defendant in Proctor, Scott had no history as a victim of sexual abuse and was sentenced
to prison rather than placed on probation. These were points that the Proctor court had
strongly emphasized when weighing the first Freeman factor. Proctor II, 2013 WL
6726286, at *4-5. Finally, while an evaluation concluded that Scott had a low-to-
moderate risk of reoffending, a moderate risk can still be a significant one, especially in
light of the harm that this type of crime can cause.

We find no error in the district court's finding that the first Freeman factor weighs
in favor of imposing lifetime postrelease supervision. The offense was a serious crime
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against a minor who couldn't legally consent to sexual activity, Scott failed to accept full
responsibility for his actions, and he exhibited poor judgment. In addition, the district
court determined that prison, not probation, was the appropriate sentence. In these
circumstances, lifetime postrelease supervision seems a reasonable measure to prevent
him from reoffending.

Freeman Factor 2: Comparison of Punishments in Kansas

The second Freeman factor calls for comparing the punishment in this case with
punishments imposed for other, more serious crimes in Kansas. If the comparison shows
that the more serious offenses are punished less severely than Scott's offense, "the
challenged penalty is to that extent suspect." Freeman, 223 Kan. at 367. In determining
whether the sentence imposed on the defendant is grossly disproportionate to sentences
for more serious offenses, the court also considers the broader purposes of the sentence
under review, the seriousness of the defendant's crime, and other considerations
examined in the first Freeman factor. Funk, 301 Kan. at 941 (citing Mossman, 294 Kan.
at 917).

The district court found that lifetime postrelease supervision was not grossly
disproportionate to penalties for other crimes, considering the seriousness of the offense
and the societal and punishment goals in imposing lifetime postrelease supervision. The
court relied heavily on the holding in Mossman. In that case, the Kansas Supreme Court
rejected a defendant's argument that imposing lifetime postrelease supervision for
aggravated indecent liberties with a child was grossly disproportionate to the punishment
for second-degree murder (which would only require 36 months of postrelease
supervision), given the purposes of lifetime postrelease supervision, the seriousness of
the crime, and other concerns addressed in the first Freeman factor. Mossman, 294 Kan.
at 912, 917. The Mossman court concluded that the difference in proportionality between
Mossman's sentence and one for other serious crimes (such as second-degree murder)
15

was "not so significant that the second Freeman factor outweighs the first Freeman
factor." 294 Kan. at 917. The district court here also noted that although Mossman
addressed a more serious sex offense than Scott had been convicted of, another Kansas
Supreme Court case adopted the same reasoning for a similar level of sex offense. See
State v. Cameron, 294 Kan. 884, 281 P.3d 143 (2012).

Scott first contends that lifetime postrelease supervision is cruel or unusual
because if he is ever convicted of another felony, even a minor one, he may be ordered to
serve life in prison. K.S.A. 2015 Supp. 75-5217 provides that if a defendant under
postrelease supervision gets a conviction for a new felony, he or she "shall serve a period
of confinement, to be determined by the prisoner review board, which shall not exceed
the remaining balance of the period of postrelease supervision." (Emphasis added.)
Accordingly, the length of any potential future confinement won't be determined until a
future offense has been committed and its seriousness can be evaluated. In this
circumstance, the Kansas Supreme Court has held that it will not consider what might
happen if a defendant commits a new felony when analyzing whether lifetime postrelease
supervision is unconstitutional. Funk, 301 Kan. at 938 (citing Mossman, 294 Kan. at 915-
16).

Scott additionally argues that lifetime postrelease supervision is disproportionate
to the other sentences imposed for "more serious" offenses. In Kansas, most prison
sentences are based on the severity level of the crime and the defendant's criminal
history. The severity level of a crime is set by statute, ranging from 1 (most serious) to 10
(least serious); the more serious the crime, the longer the possible sentence. See K.S.A.
2015 Supp. 21-6804(a). Scott identifies several offenses that are severity-level-1 or -2
felonies and that would require only 36 months of postrelease supervision. See K.S.A.
2015 Supp. 22-3717(d)(1)(A). Scott's offense, indecent liberties with a child, is a
severity-level-5 offense but carries lifetime postrelease supervision. From this, Scott
concludes that lifetime postrelease supervision is disproportionate to his crime because a
16

person sentenced to a higher severity-level offense would finish his or her entire sentence
(including postrelease supervision) before Scott would.

But in Funk and Mossman, the Kansas Supreme Court explained that this type of
comparison is not persuasive—the proportionality of a defendant's sentence cannot be
judged solely by comparing the lifetime-postrelease-supervision period to that for other
crimes. 301 Kan. at 941 (citing Mossman, 294 Kan. at 913-14). Scott's offense carried
only a 31- to 34-month sentence based on his criminal-history score, but all of the
offenses he uses for comparison would include much longer prison sentences (109 to 165
months for someone with the same criminal history). See K.S.A. 2015 Supp. 21-6804(a).
While Scott's overall sentence might be longer than sentences for those other offenses
due to postrelease supervision, he has the opportunity to serve most of the time in a less
restrictive environment than prison. See Mossman, 294 Kan. at 913. The Funk court
suggested that it would be more appropriate to compare the punishments for sex crimes
and noted that more serious sex crimes are punished more severely (that is, with longer
prison sentences), even if the postrelease-supervision period is the same. Funk, 301 Kan.
at 941-42. We find no error in the district court's determination that the second Freeman
factor weighed in favor of imposing lifetime postrelease supervision.

Freeman Factor 3: Comparison with Punishments in Other States

The third Freeman factor requires the court to compare the penalty of lifetime
postrelease supervision for this offense with punishments for the same offense in other
states. Relying on Mossman and Cameron, the district court held that lifetime postrelease
supervision was not so disproportionate to other jurisdictions' punishments as to "shock[]
the conscience and offend[] fundamental notions of human dignity," especially "in light
of the strength of the first Freeman factor."

17

Scott acknowledges that some other states impose mandatory lifetime postrelease
supervision for the same offense but still argues that the Kansas punishment "is the
harshest and most severe in the country," noting that some jurisdictions allow offenders
to be released from postrelease supervision. He does not focus on how other jurisdictions
punish his specific offense but rather discusses other jurisdictions' use of lifetime
postrelease supervision.

In Mossman, the Kansas Supreme Court conducted an extensive analysis of other
jurisdictions that impose lifetime postrelease supervision for someone over age 18 having
intercourse with a 15-year-old. It noted that even though very few states called for
mandatory lifetime postrelease supervision, Kansas was not the only state to do so, and it
was not aware of any other court that had found lifetime postrelease supervision for a sex
offender to be cruel and unusual punishment. Our Supreme Court concluded that the
"lack of strict proportionality with other sentences in Kansas and other jurisdictions" did
not outweigh the first Freeman factor, especially since the sentence was not grossly
disproportionate. 294 Kan. at 920-21. Cameron likewise discussed other jurisdictions that
impose lifetime supervision for crimes like Kansas' aggravated indecent solicitation of a
child and similarly concluded that lifetime postrelease supervision was not grossly
disproportionate. Cameron, 294 Kan. at 894-95. The same analysis applies here, and
Scott failed to make a more targeted appeal by citing to penalties for the same crime. See
Funk, 301 Kan. at 942. The district court correctly determined that lifetime postrelease
supervision "is not so disproportionate to the crime that [it] shocks the conscience and
offends fundamental notions of human dignity" such that the punishment is cruel or
unusual.

The Eighth Amendment

Scott also raises an Eighth Amendment challenge to his sentence based on the
specific facts in his case. In his brief, Scott cites the factors of the Eighth Amendment test
18

as analogous to the Freeman factors; the crux of his argument is based on the Freeman
factors. The State contends that Scott has not suggested any reasons for finding the
sentence disproportionate under the Eighth Amendment to the United States Constitution
if the court has rejected such an argument under section 9 of the Kansas Constitution Bill
of Rights. See also Cameron, 294 Kan. at 895-96 ("Cameron does not suggest any reason
why our application of the Freeman factors would not control the case-specific
considerations under the Eighth Amendment."). But in State v. Swint, 302 Kan. 326, 347-
49, 352 P.3d 1014 (2015), the Kansas Supreme Court held that because Swint
simultaneously made both his state and federal constitutional arguments and supported
his Eighth Amendment claim with federal caselaw, the court would separately consider
the merits of his Eighth Amendment claim.

Whether a sentence is cruel and unusual punishment under the Eighth Amendment
is based on whether the punishment is proportional and appropriately measured to the
offense. Graham, 560 U.S. at 59. Scott raises a case-specific challenge to lifetime
postrelease supervision, meaning he argues that the punishment is not proportional to the
crime given all the circumstances in his particular case. See 560 U.S. at 59. The relevant
test under the Eighth Amendment requires that the court first compare the seriousness of
the offense and the severity of the punishment. If that comparison leads the court to infer
that the sentence is grossly disproportionate, then the court compares the sentence with
sentences received by other offenders in the same jurisdiction and with sentences
imposed for the same crime in other jurisdictions. 560 U.S. at 60 (citing Harmelin v.
Michigan, 501 U.S. 957, 1005, 111 S. Ct. 2680, 115 L. Ed. 2d 836 [1991]).

In comparing the seriousness of the offense and the severity of the punishment, a
court may consider "the 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." Swint, 302 Kan. at
347 (quoting State v. Woodward, 294 Kan. 717, 721, 280 P.3d 203 [2012]). But it is a
19

rare case in which a court will determine the sentence is grossly disproportionate to the
offense based on this analysis. Graham, 560 U.S. at 60. In Mossman, the Kansas
Supreme Court cited to several United States Supreme Court cases upholding 25-year-to-
life sentences for third-strike convictions for theft or nonviolent crimes and concluded
that state legislatures have "considerable latitude" in determining the severity of criminal
sentences. 294 Kan. at 923-24.

The Mossman court also quoted Justice Kennedy's conclusion, considering the
sentence for possession of a large quantity of cocaine, that "'no sentence of imprisonment
would be disproportionate'" because possessing a large quantity of cocaine was just as
serious and violent as felony murder. 294 Kan. at 923-24 (quoting Harmelin, 501 U.S. at
1004). Although Justice Kennedy's opinion was merely a concurrence, the Mossman
court found it persuasive and concluded that it would be "reasonable to substitute
aggravated indecent liberties with a child" into that statement because sex offenders are a
"particularly serious threat" to public safety and are more likely than other criminals to
commit violent crimes following their release from prison. 294 Kan. at 924. The Swint
court analyzed this portion of Mossman and concluded that Swint's sentence to life with
no chance of parole for 25 years was not grossly disproportionate given "the court's
suggestion in Mossman that no term of imprisonment might be grossly disproportionate
to the crime of aggravated indecent liberties for Eighth Amendment proportionality
purposes." 302 Kan. at 349.

In this case, Scott engaged in sexual activity with a 14-year-old, a serious crime.
Scott had a low-to-moderate risk of reoffending, but the evaluator and district court were
also concerned about some of his personality characteristics, including his pleasure-
seeking lifestyle and poor judgment. He also did not fully accept responsibility for his
actions. And lifetime postrelease supervision minimizes the "particularly serious threat"
that sex offenders pose to society. The district court thoroughly analyzed these factors,
and we find no error in its conclusions that Scott's sentence to lifetime postrelease
20

supervision was not grossly disproportionate to his crime and that the sentence did not
violate either the Eighth Amendment to the United States Constitution or section 9 of the
Kansas Constitution Bill of Rights.

We therefore affirm the district court's judgment.