                  IN THE SUPREME COURT OF THE STATE OF KANSAS


                                               No. 118,737

                                           STATE OF KANSAS,
                                               Appellee,

                                                    v.

                                     FILIBERTO B. ESPINOZA JR.,
                                             Appellant.


                                   SYLLABUS BY THE COURT

        A defendant making an as-applied challenge to the constitutionality of a sentence
under § 9 of the Kansas Constitution Bill of Rights has an obligation to ensure an
adequate factual record is developed in district court. If necessary, this requires the
defendant to file a motion invoking the judge's duty to make findings of fact and
conclusions of law under Supreme Court Rule 165 (2020 Kan. S. Ct. R. 215).


        Appeal from Wyandotte District Court; ROBERT W. FAIRCHILD, judge. Opinion filed April 24,
2020. Affirmed.


        Randall L. Hodgkinson, of Kansas Appellate Defender Office, was on the brief for appellant.


        Lois Malin, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt,
attorney general, were on the brief for appellee.


The opinion of the court was delivered by


        STEGALL, J.: The State charged Filiberto B. Espinoza Jr. with one count of
premeditated first-degree murder, conspiracy to commit aggravated robbery, and




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attempted aggravated robbery for the killing of Louis Scherzer. During the trial,
Espinoza pleaded guilty to first-degree felony murder—an off-grid person felony
mandating a hard 25 sentence. See K.S.A. 2019 Supp. 21-5402(a)(2), (b); K.S.A. 2019
Supp. 21-6620(b)(1). But before sentencing, Espinoza challenged the constitutionality of
his hard 25 sentence as applied to the facts of his case under § 9 of the Kansas
Constitution Bill of Rights. The district court denied his challenge, finding the sentence
constitutional. Espinoza now challenges the district court's decision on direct appeal.


       Before the district court, Espinoza acknowledged his offense mandated the hard 25
sentence. See K.S.A. 2019 Supp. 21-5402(a)(2), (b) (defining first-degree felony murder
as an off-grid person felony); K.S.A. 2019 Supp. 21-6620(b)(1) (stating that defendants
convicted of first-degree felony murder "shall not be eligible for parole prior to serving
25 years' imprisonment"). But before sentencing, he moved for a durational departure
arguing that this mandated sentence was unconstitutional as applied to him given the
facts of the case.


       Espinoza continued to assert his constitutional claims orally at sentencing. He
argued that the three-pronged proportionality test announced in State v. Freeman, 223
Kan. 362, 367, 574 P.2d 950 (1978), required the district court to assess the specific facts
of his case to determine the constitutionality of his sentence under § 9 of the Kansas
Constitution Bill of Rights. Espinoza then listed facts from his case he believed weighed
in favor of granting a durational departure.


       The district court denied this request, finding Espinoza's hard 25 sentence
constitutional:




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       "As both parties have acknowledged, the statute K.S.A. 21-6620 provides that the Court
       should not make any suspension, modification, or reduction of the sentence. The Court is
       bound by that statute and I have no reason to believe that it's unconstitutional. So the
       defendant's motion to depart is denied."


In making this decision, the district court did not make any factual findings concerning
Espinoza's as-applied constitutional challenge. On appeal, Espinoza argues the district
court erred when it failed to make such findings. He requests a remand to the district
court to develop the necessary factual record.


       Disproportionality challenges based on § 9 of the Kansas Constitution Bill of
Rights require both legal and factual inquiries. State v. Patterson, 311 Kan. __, 455 P.3d
792, 801 (2020). And a factual record is required for any meaningful appellate review.
455 P.3d at 801 ("'[A] challenge under § 9 of the Kansas Constitution Bill of Rights
generally cannot be raised for the first time on appeal because of the factual inquiries
involved.'"). We have repeatedly emphasized that it is the defendant's responsibility to
ensure the district court makes the factual findings necessary for appellate review. See,
e.g., 455 P.3d at 801-02 (stating that this court has "repeatedly emphasized" that the
defendant bears the responsibility of ensuring that the district court makes adequate
factual findings); State v. Cervantes-Puentes, 297 Kan. 560, 565, 303 P.3d 258 (2013)
(same); State v. Seward, 289 Kan. 715, Syl. ¶ 3, 217 P.3d 443 (2009) (same).


       This responsibility goes beyond merely raising a constitutional claim. Our
decision in Seward controls the outcome here. There, as here, Seward filed a motion for a
downward departure and raised the constitutional claim at sentencing. The Seward court
recognized that Seward had—at least in part—preserved the issue by calling the district
court's attention to his constitutional challenge. 289 Kan. at 718. But his efforts "stopped




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short of moving under Rule 165 to prompt the district judge to place specific findings of
fact and conclusions of law on the constitutional challenges in the record." 289 Kan. at
718-19. Although the unique circumstances of Seward's case led to a remand due to the
"newness of the constitutional issues," the Seward court precluded this remedy for future
litigants:


               "We emphasize that we believe this case to be exceptional. In the future, a
       defendant who wishes to appeal on the basis of a constitutional challenge to a sentencing
       statute must ensure the findings and conclusions by the district judge are sufficient to
       support appellate argument, by filing of a motion invoking the judge's duty under Rule
       165, if necessary." 289 Kan. at 721.


       We have enforced this rule consistently against other defendants. In State v. Reed,
300 Kan. 494, 332 P.3d 172 (2014), the defendant argued his hard 40 sentence violated
the Eighth Amendment to the United States Constitution and § 9 of the Kansas
Constitution Bill of Rights. The trial judge failed to make factual findings. And on
appeal, we rejected Reed's request for a remand:


       "Reed ignores the fact that he neither objected to the judge's insufficient findings at the
       hearing, nor subsequently filed a motion under Supreme Court Rule 165 (2013 Kan. Ct.
       R. Annot. 265) or otherwise asked the sentencing judge to make factual findings.


               ....


               "Because of the factual components of Reed's arguments, Reed should have been
       aware that he was responsible for making sure there were adequate findings on the
       record. Having failed to do so, Reed's state and federal constitutional challenges fail, and
       we affirm the sentencing judge's imposition of concurrent life sentences without the
       possibility of parole for 40 years." 300 Kan. at 514.




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       The outcome must be the same here. Espinoza did not object to the district court's
failure to make factual findings at sentencing and he did not file a motion under Kansas
Supreme Court Rule 165 (2020 Kan. S. Ct. R. 215). Because Espinoza failed to meet this
obligation, his as-applied challenge to the constitutionality of his hard 25 sentence is not
amenable to appellate review.


       Affirmed.


       PATRICK D. MCANANY, Senior Judge, assigned.1




1
 REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case
No. 118,737 under the authority vested in the Supreme Court by K.S.A. 20-2616 to
fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.


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