                                        No. 110,766

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                     STATE OF KANSAS,
                                         Appellee,

                                              v.

                                        IRA L. REED,
                                         Appellant.


                              SYLLABUS BY THE COURT


1.
       Individuals convicted of sexually violent crimes pursuant to K.S.A. 2013 Supp.
22-3717(d)(5) are subject to lifetime postrelease supervision under K.S.A. 2013 Supp.
22-3717(d)(1)(G).


2.
       The Eighth Amendment to the United States Constitution, which is applicable to
the states through the Fourteenth Amendment, provides: "Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
Section 9 of the Kansas Constitution Bill of Rights contains similar protections. The
concept of proportionality is central to the Eighth Amendment. Embodied in the
Constitution's ban on cruel and unusual punishments is the precept of justice that
punishment for crime should be graduated and proportioned to the offense.


3.
       A categorical proportionality analysis under the Eighth Amendment does not
require a review of the district court's factual findings. Instead, only questions of law are
implicated. There are three subcategories of categorical proportionality challenges: first,

                                              1
those concerning the nature of the offense; second, those concerning the characteristics of
the offender; and third, a combination of the first two.


4.
       There is a two-prong test used to evaluate a defendant's categorical proportionality
challenge to a sentence. The court first considers objective indicia of society's standards,
as expressed in legislative enactments and state practice to determine whether there is a
national consensus against the sentencing practice at issue. 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, the court
must determine in the exercise of its own independent judgment whether the punishment
in question violates the Constitution.


5.
       To successfully challenge a sentence as categorically disproportionate, a defendant
must show that, based on the characteristics of the class of offender to which the
defendant belongs and the nature of the offense at issue, the sentencing practice is
disproportionate with the offender's culpability.


6.
       The "attempt" nature of a conviction does not remove it from the general category
of sexually violent crimes subject to lifetime postrelease supervision.


7.
       Lifetime postrelease supervision as applied to first time offenders serves legitimate
penological goals because supervised release meets the same rehabilitative and deterrent
objectives as it does for repeat offenders.




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8.
       Offenders who are guilty of attempting to commit a crime still have the intent
required to commit it, so the penological objectives for lifetime postrelease supervision
are the same as for those offenders who completed a crime.


9.
       The goals of rehabilitation and incapacitation, in particular, are served by the
imposition of lifetime postrelease supervision, given the propensity of sex offenders to
reoffend. Individuals on postrelease supervision for a sex crime conviction are typically
required to receive sex offender treatment, which serves an important rehabilitative
component, and supervision keeps sex offenders under the watchful eye of probation
officers, which protects society against future victims.


       Appeal from Butler District Court; MICHAEL E. WARD, judge. Opinion filed January 16, 2015.
Affirmed.


       Samuel Schirer, of Kansas Appellate Defender Office, for appellant.


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


Before ATCHESON, P.J., POWELL, J., and JOHNSON, S.J.


       POWELL, J.: Ira L. Reed appeals part of his sentence for one count of attempted
aggravated indecent liberties with a child, claiming lifetime postrelease supervision is
cruel and unusual punishment prohibited by the Eighth Amendment to the United States
Constitution. We disagree and affirm.




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                                           FACTS

       On February 1, 2013, Reed, a first time offender with no criminal history, pleaded
no contest to one count of attempted aggravated indecent liberties with a child (crime
occurred between June and October 2009), a sexually violent crime pursuant to K.S.A.
2009 Supp. 22-3717(d)(2)(C) and (K), subject to mandatory lifetime postrelease
supervision pursuant to K.S.A. 2009 Supp. 22-3717(d)(1)(G). At his sentencing hearing,
Reed objected to the imposition of lifetime postrelease supervision, contending it
constituted cruel and unusual punishment prohibited by the Eighth Amendment to the
United States Constitution. The district court overruled Reed's objection and sentenced
him to 32 months in prison and lifetime postrelease supervision.


       Reed timely appeals.


   WAS THE DISTRICT COURT'S IMPOSITION OF LIFETIME POSTRELEASE SUPERVISION
               A CATEGORICALLY DISPROPORTIONATE SENTENCE?



       The Eighth Amendment, which is applicable to the states through the Fourteenth
Amendment, provides: "Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted." Section 9 of the Kansas
Constitution Bill of Rights contains similar protections. The United States Supreme Court
has declared that "[t]he concept of proportionality is central to the Eighth Amendment.
Embodied in the Constitution's ban on cruel and unusual punishments is the 'precept of
justice that punishment for crime should be graduated and proportioned to [the] offense.'"
Graham v. Florida, 560 U.S. 48, 59, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010) (quoting
Weems v. United States, 217 U.S. 349, 367, 30 S. Ct. 544, 54 L. Ed. 793 [1910]). The
Kansas Supreme Court has described two proportionality challenges to sentences which
are alleged to be violative of these constitutional provisions: (1) challenges that claim the
sentence imposed is grossly disproportionate in light of all the circumstances of a


                                              4
particular case, and (2) "'cases in which the Court implements the proportionality
standard by certain categorical restrictions' . . . ." State v. Gomez, 290 Kan. 858, 864, 235
P.3d 1203 (2010) (quoting Graham, 560 U.S. at 59).


       Reed's appeal falls under a categorical proportionality challenge because the
district court was not called upon to determine factual findings pursuant to State v.
Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978) (establishing the three-part test used to
determine whether sentence is prohibited under § 9 of the Kansas Constitution Bill of
Rights). "[A] categorical proportionality analysis under the Eighth Amendment does not
require a review of the district court's factual findings. Instead, only questions of law are
implicated. This court has unlimited review over legal questions." State v. Mossman, 294
Kan. 901, 925, 281 P.3d 153 (2012) (citing State v. King, 288 Kan. 333, 355, 204 P.3d
585 [2009]; State v. Martinez, 288 Kan. 443, 449, 204 P.3d 601 [2009]).


       Reed argues lifetime postrelease supervision is a categorically disproportionate
punishment when imposed upon individuals convicted of trying and failing to indecently
touch a child under the age of 14. Because this challenge rests on the unconstitutionality
of the punishment for a class of criminals, the facts to the particular defendant's offense
and any mitigating or aggravating circumstances personal to the defendant are irrelevant
in deciding the legal issue. See State v. Cameron, 294 Kan. 884, 896, 281 P.3d 143
(2012).


       The United States Supreme Court has recognized three subcategories of
categorical proportionality challenges: first, those concerning the nature of the offense;
second, those concerning the characteristics of the offender; and third, a combination of
the first two. State v. Williams, 298 Kan. 1075, 1086, 319 P.3d 528 (2014). Our Supreme
Court has included first time offenders in the nature of the offense subcategory.
Mossman, 294 Kan. at 928. Reed would appear to fall under the third subcategory given


                                              5
that he is a first time offender but focuses his arguments on the disproportionality of
lifetime postrelease supervision in the context of an attempt to commit a sex crime.


       There is a two-prong test used to evaluate a defendant's categorical proportionality
challenge to a sentence:


       "The Court first considers 'objective indicia of society's standards, as expressed in
       legislative enactments and state practice' to determine whether there is a national
       consensus against the sentencing practice at issue. [Citation omitted.] 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 violates the Constitution. [Citation
       omitted.]" Graham, 560 U.S. at 61.


       However, when employing this test, the United States Supreme Court reminds us
that


                "[c]ommunity consensus, while 'entitled to great weight,' is not itself
       determinative of whether a punishment is cruel and unusual. [Citation omitted.] In
       accordance with the constitutional design, 'the task of interpreting the Eighth Amendment
       remains our responsibility.' [Citation omitted.] The judicial exercise of independent
       judgment requires consideration of the culpability of the offenders at issue in light of
       their crimes and characteristics, along with the severity of the punishment in question.
       [Citations omitted.] In this inquiry the Court also considers whether the challenged
       sentencing practice serves legitimate penological goals. [Citations omitted.]" 560 U.S. at
       67-68.


       Legitimate penological goals include (1) retribution, (2) deterrence, (3)
incapacitation, and (4) rehabilitation. 560 U.S. at 71. To successfully challenge a
sentence, our Supreme Court has stated a defendant must satisfy the second prong,


                                                     6
meaning a defendant "must show that, based on the characteristics of the class of offender
[the defendant] belongs to and the nature of the offense at issue, the sentencing practice is
disproportionate with the offender's culpability." Williams, 298 Kan. at 1087-88 (quoting
State v. Ruggles, 297 Kan. 675, Syl. ¶ 4, 304 P.3d 338 [2013]).


       First, Reed argues there is a national consensus against lifetime postrelease
supervision for individuals with whom is he similarly situated. Other than Kansas,
Nebraska is the only state that imposes mandatory lifetime postrelease supervision on
individuals for a first time attempted indecent touching offense. See Neb. Rev. Stat. § 28-
320.01 (2008); Neb. Rev. Stat. § 29-4003(1)(a)(xiv) (2008); Neb. Rev. Stat. § 83-
174.03(1) (2008). Reed analogizes this circumstance to that in Graham, where the United
States Supreme Court identified a national consensus against imposing a life without the
possibility of parole sentence upon juveniles convicted of a nonhomicide offense when
only 13 states prohibited such a punishment. See 560 U.S. at 67.


       The rarity of lifetime postrelease supervision for an attempt crime appears
persuasive, yet prior panels of our court have concluded the attempt nature of a
conviction does not remove it from the general category of sexually violent crimes
subject to lifetime postrelease supervision. See State v. Hindman, No. 110,261, 2014 WL
5312925, at *6-7 (Kan. App. 2014) (unpublished opinion) (attempted indecent liberties
with a child subject to lifetime postrelease supervision), petition for rev. filed November
5, 2014; State v. Russell, No. 107,588, 2013 WL 3867180, at *4-6 (Kan. App. 2013)
(unpublished opinion) (attempted aggravated solicitation of a child is subject to lifetime
postrelease supervision), rev. denied 299 Kan. ___ (June 20, 2014); State v. Barrera, No.
104,664, 2013 WL 517581, at *9-10 (Kan. App. 2013) (unpublished opinion) (attempted
rape is subject to lifetime postrelease supervision), rev. denied 297 Kan. 1248 (2013).


       The defendant in Barrera, like Reed, argued there was a national consensus
against the imposition of lifetime postrelease supervision for an individual convicted of

                                             7
attempted rape. In concluding that attempt crimes are subject to lifetime postrelease
supervision, the Barrera court engaged in the following analysis:


               "Our Supreme Court has adopted the Ninth Circuit Court of Appeals' position in
       United States v. Williams, 636 F.3d 1229, 1233 (9th Cir.), cert. denied 132 S. Ct. 188
       (2011), in which the Ninth Circuit examined a categorical challenge to a sentence of
       lifetime postrelease supervision for a conviction of receipt of child pornography:
       '"'[O]bjective indicia' suggest that society is comfortable with lifetime sentences of
       supervised release for sex offenders, as such sentences are common."' See Cameron, 294
       Kan. at 897; Mossman, 294 Kan. at 929. In both Mossman and Cameron, our Supreme
       Court quoted this language and applied the Ninth Circuit's reasoning. Cameron, 294 Kan.
       at 897-98; Mossman, 294 Kan. at 929-30.
               "Although both the Mossman and Cameron courts specifically identified the
       category at issue to be identical with the crime of conviction, the application of Williams
       to both Mossman['s] and Cameron's cases means that our Supreme Court is truly
       analyzing the category even more broadly—as 'sex offenses.' This is the only way in
       which the three crimes at issue in the three cases—aggravated indecent liberties with a
       child, aggravated indecent solicitation of a child, and receipt of child pornography—can
       undergo identical analysis for a categorical proportionality challenge under the Eighth
       Amendment. Moreover, our Supreme Court considered that 'several other states have
       adopted lifetime postrelease supervision for many, if not all, sexually violent crimes.'
       Cameron, 294 Kan. at 897; Mossman, 294 Kan. at 930. This statement, identical in both
       opinions, reinforces the belief that the category of offense actually being considered was
       'sexually violent crimes' as a whole, not each crime individually." Barrera, 2013 WL
       517581, at *9.


       From this analysis, the panel in Barrera determined that individuals convicted of
attempted rape, a sexually violent crime under K.S.A. 2011 Supp. 22-3717(d)(2), are
properly subject to lifetime postrelease supervision because "there is no national
consensus against lifetime postrelease supervision for perpetrators of sexually violent
crimes; rather, it seems to be a widespread phenomenon." 2013 WL 517581, at *9. In
Russell, another panel of this court subsequently relied on Barrera's analysis when

                                                    8
holding that individuals convicted of attempted aggravated indecent solicitation of a
child, a sexually violent crime under K.S.A. 22-3717(d)(2)(K), are properly subject to
lifetime postrelease supervision. Russell, 2013 WL 3867180, at *4-5. Based on this
rationale, because Reed was convicted of attempted aggravated indecent liberties with a
child, a sexually violent crime under K.S.A. 2009 Supp. 22-3717(d)(2)(C) and (K), he is
subject to lifetime postrelease supervision. Cf. K.S.A. 2013 Supp. 22-3717(d)(5); K.S.A.
2013 Supp. 22-3717(d)(1)(G).


       Second, Reed urges us, in our exercise of independent judgment, to find his
sentence unconstitutional because it does not serve the legitimate penological goals of
retribution, deterrence, incapacitation, and rehabilitation. Specifically, with respect to
retribution, Reed argues that attempt crimes do not necessarily involve a victim who was
harmed and therefore society's need for retribution is considerably less than in cases
involving a completed criminal offense.


       However, "[s]ociety is entitled to impose severe sanctions on a . . . nonhomicide
offender to express its condemnation of the crime and to seek restoration of the moral
imbalance caused by the offense." Graham, 560 U.S. at 71. While we recognize that
"lifetime postrelease supervision is a severe penalty, . . . it is not as severe as capital
punishment or life without parole . . . ." Berrera, 2013 WL 517581, at *10.


       The Kansas Supreme Court has appeared to reject the argument that a sex crime
which did not involve a touching of or "harm" to a victim lessened society's need for the
same level of punishment, relying upon the Ninth Circuit's holding that lifetime
postrelease supervision for a sex crime which did not involve a touching was not
disproportional. See Williams, 636 F.3d at 1233 (receipt of images of child pornography
on his computer); Williams, 298 Kan. at 1089-90 (possessing an electronic recording
depicting child engaging in sex acts). Also, in Hindman, the panel in that case noted that
"offenders who are guilty of attempting to commit a crime still have the intent required to

                                                9
commit it, so the penological objectives for lifetime postrelease supervision are the same"
as those who completed the crime. 2014 WL 5312925, at *7.


       Moreover, our Supreme Court has held that lifetime postrelease supervision as
applied to first time offenders served legitimate penological goals because supervised
release met the same rehabilitative and deterrent objectives as it did for repeat offenders.
Mossman, 294 Kan. at 930. Perhaps most significantly, our Supreme Court in Mossman
and Cameron determined that the goals of rehabilitation and incapacitation, in particular,
are served by the imposition of lifetime postrelease supervision. Cameron, 294 Kan. at
898 (goals of rehabilitation and incapacitation "'are central purposes of the criminal
justice system, and they are particularly critical here given the propensity of sex offenders
to strike again'" [quoting Williams, 636 F.3d at 1234]); Mossman, 294 Kan. at 930. For
example, offenders on postrelease supervision for a sex crime conviction are typically
required to receive sex offender treatment, which serves an important rehabilitative
component, and supervision keeps sex offenders "'under the watchful eye of probation
officers,'" which protects society against future victims. Williams, 636 F.3d at 1234.


       While we recognize that lifetime postrelease supervision is a severe sanction, and
we understand that reasonable people can take the view that such a sanction is too harsh,
the legislature, in its considered judgment as representatives of the people, has
determined such a sanction to be appropriate in such cases. Reed cannot show that the
Kansas Supreme Court's rulings on this subject do not apply to his crime of attempted
aggravated indecent liberties with a child, and we do not find that the imposition of
lifetime postrelease supervision is categorically cruel and unusual punishment. By
applying the same analyses and reaching the same conclusions as in Mossman, Cameron,
and Williams, cases involving different sex crimes, our Supreme Court has suggested it
would reject a challenge to the imposition of lifetime postrelease supervision regardless
of the sex crime involved. Based on these precedents, Reed's sentence is not categorically
disproportionate in violation of the Eighth Amendment.

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      Affirmed.


                                        ***


      ATCHESON, J., concurring: I concur in the result affirming the sentence imposed
on Defendant Ira Reed.




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