                                              No. 114,523

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                            STATE OF KANSAS,
                                                Appellee,

                                                   v.

                                            JUAN A. MEDINA,
                                               Appellant.


                                   SYLLABUS BY THE COURT

1.
        A categorical proportionality challenge under the Eighth Amendment to the
United States Constitution is a question of law over which an appellate court has
unlimited review.


2.
        The holding in State v. Dull, 302 Kan. 32, 351 P.3d 641 (2015), cert. denied 577
U.S. ___, 136 S. Ct. 1364 (2016), that mandatory lifetime postrelease supervision is
categorically unconstitutional when imposed on a juvenile convicted of aggravated
indecent liberties with a child, applies to all juveniles convicted of a sex offense.


        Appeal from Wyandotte District Court; MICHAEL GROSKO, judge. Opinion filed October 14,
2016. Sentence vacated in part and remanded with directions.


        Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.


        Alan T. Fogleman, assistant district attorney, Jerome A. Gorman, district attorney, and Derek
Schmidt, attorney general, for appellant.




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Before MALONE, C.J., SCHROEDER, J., and WALKER, S.J.


       MALONE, C.J.: Juan Medina appeals his sentence of lifetime postrelease
supervision following his conviction of aggravated criminal sodomy committed when he
was under the age of 18. Medina argues that the imposition of lifetime postrelease
supervision for juveniles convicted of a sex offense is unconstitutional under the Eighth
Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of
Rights. Based on controlling Kansas Supreme Court precedent, we agree. Thus, we
vacate the lifetime postrelease supervision portion of Medina's sentence for aggravated
criminal sodomy and remand to the district court for resentencing.


Factual and procedural background


       The relevant facts are straightforward and undisputed. Between November 12,
2008, and November 11, 2009, Medina, who was under the age of 18, engaged in sexual
intercourse with J.C., his sister, who was 12 and 13 years of age at the time of the
incidents. Medina also performed oral sex on J.C. between November 12, 2009, and
November 11, 2010, when she was still under the age of 14. J.C. did not report Medina's
sexual abuse until 2014. After the sexual abuse involving J.C. came to light, the State
charged Medina with one count of rape and one count of aggravated criminal sodomy in
14CR1071. At the time these charges were filed, Medina already was on probation for a
2012 rape conviction in 12CR823, which he committed when he was an adult.


       On May 1, 2015, pursuant to a plea agreement, Medina pled no contest to one
count of aggravated criminal sodomy in exchange for dismissal of the rape charge. The
parties agreed to recommend a downward durational departure sentence of 165 months'
imprisonment, and the plea agreement indicated that Medina stipulated to violating his
probation in 12CR823. Prior to sentencing, Medina filed a motion for durational


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departure on the grounds that he accepted responsibility for his actions and spared J.C.
the trauma of trial testimony.


       The district court held a sentencing hearing on June 12, 2015. The judge began the
hearing by revoking Medina's probation in 12CR823 and ordering him to serve his
underlying sentence in that case of 165 months' imprisonment followed by lifetime
postrelease supervision. Nothing about that order is subject to this appeal. In 14CR1071,
the district court granted Medina's motion for durational departure and imposed the
agreed sentence of 165 months' imprisonment with lifetime postrelease supervision. The
district court ordered the sentences in the two cases to run consecutively. Medina timely
filed a notice of appeal in 14CR1071.


       On appeal, Medina argues that mandatory lifetime postrelease supervision for
crimes committed by juveniles constitutes cruel and unusual punishment under the Eighth
Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of
Rights. Specifically, he asserts that the imposition of lifetime postrelease supervision on
juveniles convicted of a sex offense is categorically disproportionate. Acknowledging
that this issue is being raised for the first time on appeal, Medina argues that his
constitutional challenges are purely questions of law that are "determinative of the case."


       The State concedes that Medina's Eighth Amendment claim can be heard for the
first time on appeal; on the merits, the State argues that lifetime postrelease supervision
for Medina's conviction of aggravated criminal sodomy does not violate the Eighth
Amendment. The State argues that Medina's § 9 challenge cannot properly be raised due
to the necessity of conducting a fact intensive inquiry to resolve it. The State also
contends that even if Medina's § 9 challenge involves only questions of law, it still cannot
be addressed because he failed to adequately brief it.




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       K.S.A. 2015 Supp. 22-3717(d)(1)(G),(5)(E) requires lifetime postrelease
supervision following a conviction of aggravated criminal sodomy. The constitutionality
of a sentencing statute is a question of law subject to an appellate court's unlimited
review. State v. Hilt, 299 Kan. 176, 202, 322 P.3d 367 (2014). More specifically, a
categorical proportionality challenge under the Eighth Amendment is a question of law
over which an appellate court has unlimited review. State v. Dull, 302 Kan. 32, 40, 351
P.3d 641 (2015), cert. denied 577 U.S. ___, 136 S. Ct. 1364 (2016). If there is any way
for an appellate court to construe a statute as constitutional, it must do so. State v.
Mossman, 294 Kan. 901, 906-07, 281 P.3d 153 (2012).

Issue preservation

       To determine whether Medina's claims are preserved, it is necessary to separate
his claim under § 9 of the Kansas Constitution Bill of Rights from his claim under the
Eighth Amendment. See State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010). The
constitutionality of a sentence under § 9 of the Kansas Constitution Bill of Rights turns
on the proportionality test articulated in State v. Freeman, 223 Kan. 362, 367, 574 P.2d
950 (1978). Gomez, 290 Kan. at 867. Under this test, the court conducts a three-part
analysis that includes both legal and factual inquiries. 290 Kan. at 867. "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." Dull, 302 Kan. at 38. Thus, we
will not consider Medina's claim under § 9 of the Kansas Constitution Bill of Rights.


       Conversely, constitutional challenges under the Eighth Amendment are divided
into two categories: (1) challenges to length-of-term sentences taking into account the
circumstances of a particular case; and (2) categorical proportionality challenges where
the defendant claims that a particular punishment is disproportionate for an entire class of
offenders. Graham v. Florida, 560 U.S. 48, 61, 130 S. Ct. 2011, 176 L. Ed. 2d 825
(2010). Medina's Eighth Amendment claim is a categorical proportionality challenge


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because he argues that the imposition of lifetime postrelease supervision is categorically
disproportionate for all juveniles convicted of a sex offense. Because categorical
proportionality challenges are not case specific and generally raise questions of law, we
will consider Medina's Eighth Amendment claim for the first time on appeal. See Dull,
302 Kan. at 39 (addressed categorical proportionality claim for first time on appeal).


Merits of Medina's Eighth Amendment challenge

       Medina contends that the imposition of lifetime postrelease supervision for
juveniles convicted of a sex offense constitutes cruel and unusual punishment under the
Eighth Amendment. To support his argument, Medina relies on Dull, which held that
mandatory lifetime postrelease supervision of juveniles convicted of aggravated indecent
liberties with a child constitutes cruel and unusual punishment in violation of the Eighth
Amendment. 302 Kan. at 61. Medina argues that this holding should be extended to all
sex crimes committed by juveniles.


       Medina applies the two-pronged approach set out in Graham, where the court first
looks at whether there is a national consensus against the sentencing practice at issue and
then exercises its own independent judgment to determine whether the punishment in
question violates the Constitution. 560 U.S. at 61. First, Medina argues that there is a
national consensus against lifetime postrelease supervision for juveniles. Next, he asserts
that the reduced culpability of juvenile offenders, the severe nature of lifetime postrelease
supervision, and its inappropriateness in furthering legitimate penological goals render it
unconstitutional as applied to juvenile offenders. According to Medina, the same
rationale behind the court's decision in Dull is applicable here, and lifetime postrelease
supervision for all juvenile sex offenders is categorically unconstitutional.


       In response, the State argues that Dull is distinguishable from Medina's case. In
regards to the first prong of the Graham analysis, the State contends that there is not any

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national consensus against lifetime postrelease supervision of juvenile sex offenders. The
State also argues that this court should take into account the severity of Medina's sex
crime when exercising its own independent judgment; Dull's crime of aggravated
indecent liberties with a child was a level 3 offense, which is a less serious offense and is
distinguishable from Medina's level 1 person felony for aggravated criminal sodomy.
Finally, the State claims that if Dull is not distinguishable and it does apply to all juvenile
sex offenses, then it was wrongly decided.


       Medina's main argument on appeal is that the Kansas Supreme Court's ruling in
Dull should be extended to all sex crimes committed by juveniles. Therefore, the first
issue we should consider is whether the ruling in Dull already constitutes a blanket
prohibition on lifetime postrelease supervision for juveniles convicted of sex offenses. To
answer this question, a thorough examination of Dull is necessary.


       Dull was convicted in one case of aggravated indecent liberties with a child, and
he was convicted in a separate case of burglary and misdemeanor theft. Dull was 17 years
old when he committed aggravated indecent liberties, but he was prosecuted as an adult.
As a result, he received a statutorily required sentence of lifetime postrelease supervision
for that conviction.


       On appeal, Dull challenged the constitutionality of his mandatory lifetime
postrelease supervision under the Eighth Amendment. The Court of Appeals applied the
two-pronged Graham analysis and held that mandatory lifetime postrelease supervision
for juvenile offenders does not categorically rise to the level of cruel and unusual
punishment under the Eighth Amendment. See Dull, 302 Kan. at 36. On a petition for
review, the Kansas Supreme Court reversed the Court of Appeals and held that
mandatory lifetime postrelease supervision is categorically unconstitutional when
imposed on a juvenile who committed and was convicted of indecent liberties with a
child. 302 Kan. at 61.

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       In reaching this decision, the court applied the two-prong Graham analysis. Dull,
302 Kan. at 45. The court first asked whether "objective indicia of society's standards"
demonstrated a national consensus against the sentencing practice of mandatory lifetime
postrelease supervision. 302 Kan. at 45-46. In answering this question, the court noted
that 18 states imposed mandatory lifetime postrelease supervision for some convicted sex
offenders. 302 Kan. at 50. Kansas, Colorado, Nebraska, and Oklahoma mandated lifetime
postrelease supervision of juveniles convicted of offenses comparable to aggravated
indecent liberties with a child. 302 Kan. at 50. Arizona allowed for discretionary lifetime
postrelease supervision in such circumstances. 302 Kan. at 50. However, Indiana,
Montana, and Oregon prohibited mandatory lifetime postrelease supervision for
juveniles. 302 Kan. at 50. Based on these findings, the court held that Dull had failed to
show that there was a national consensus against imposing lifetime postrelease
supervision on juveniles. 302 Kan. at 50.


       Noting that the presence or absence of a national consensus is not dispositive, our
Supreme Court then turned to the second prong of Graham. Dull, 302 Kan. at 51. Under
this prong, the court is to exercise independent judgment and consider the culpability of
juvenile offenders, the severity of mandatory lifetime postrelease supervision, and the
legitimate penological goals served by lifetime postrelease supervision. 302 Kan. at 51;
see Mossman, 294 Kan. at 929.


       As to culpability, our Supreme Court reiterated the view of the United States
Supreme Court in Miller, Graham, and Roper that juveniles should be treated differently
than adult offenders because they are less culpable due to immaturity and they are more
likely to be successfully reformed. Dull, 302 Kan. at 51. See generally Miller v. Alabama,
567 U.S. __, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012); Graham, 560 U.S. 48; Roper v.
Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005). Based on these
decisions, the court concluded that Dull had a diminished moral culpability for his crime
because he committed the offense when he was 17 years old. 302 Kan. at 52.

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       Next, the court noted that lifetime postrelease supervision, while not as serious as
imprisonment, is a severe punishment that "restricts the juvenile's liberty for life without
any chance, hope, or legal mechanism of having those restrictions lifted or even
reduced." 302 Kan. at 55. In support of this finding, the court noted that the restrictions
imposed included: reporting to a parole officer as directed; undergoing polygraph
examinations at the request of the parole officer; registering and reporting to the local
sheriff as directed; submitting to searches of the offender's residence, automobile, and
personal effects; not traveling outside the state without permission; not drinking alcoholic
beverages without permission; and not hunting with a firearm. 302 Kan. at 56.


       Finally, the court examined whether lifetime postrelease supervision serves
legitimate penological goals. 302 Kan. at 56. The court first acknowledged that
rehabilitation and incapacitation are the central purposes of the criminal justice system,
and these goals are especially important in sex offense cases because of the high rate of
recidivism in sex offenders. 302 Kan. at 57. It discussed Kansas cases justifying the
imposition of lifetime postrelease supervision on sex offenders due to these penological
concerns, but it rejected them as inapplicable to the case at hand because they did not
address the unique penological goals of juvenile offenders. 302 Kan. at 57.


       Instead, our Supreme Court looked to the penological goals of life without parole
sentences articulated in Graham and Miller. Our Supreme Court held that because
juveniles are less culpable than their adult counterparts, the goal of retribution does not
justify the imposition of such a severe penalty as lifetime postrelease supervision. Dull,
302 Kan. at 57. Similarly, the immaturity of juveniles makes it unlikely that deterrence is
a legitimate consideration for juveniles because of their irresponsibility and
impetuousness. 302 Kan. at 57-58. The goal of rehabilitation is not met by lifetime
postrelease supervision because a lifetime restraint on a juvenile's liberty "requires a
determination that the juvenile will forever be a danger to society and 'foreswears
altogether the rehabilitative ideal.'" 302 Kan. at 60 (quoting Graham, 560 U.S. at 74).

                                              8
Lastly, relying on data from several law review articles, the court found that juvenile sex
offenders have lower recidivism rates than adults; thus, lifetime postrelease supervision is
not justified by the penological goal of incapacitation to avoid recidivism. 302 Kan. at 60.


       Based on all of these findings, the Dull court concluded "that mandatory lifetime
postrelease supervision is categorically unconstitutional under Graham when imposed on
a juvenile who committed and was later convicted of aggravated indecent liberties with a
child." 302 Kan. at 61. The court vacated the lifetime postrelease supervision portion of
Dull's sentence and remanded to the district court for resentencing. 302 Kan. at 61.


       Although the holding in Dull is limited to juvenile offenders convicted of
aggravated indecent liberties with a child, a close examination of the language and legal
reasoning behind the Dull decision indicates that the ruling is intended to be a categorical
prohibition of lifetime postrelease supervision for all juveniles convicted of a sex offense.
Our Supreme Court's broad language in Dull suggests that its holding is applicable to all
juveniles convicted of any sex offense. For example, when examining whether lifetime
supervision serves legitimate penological goals, the Dull court stated that the unique
character traits of juveniles "diminish the penological goals of lifetime supervision for
juvenile sex offenders." 302 Kan. at 61. Moreover, the caselaw supporting the decision in
Dull addresses the constitutionality of imposing certain punishments on juveniles as a
class, rather than a particular juvenile offender convicted of a particular crime. See
generally, Miller, 132 S. Ct. 2455; Graham, 560 U.S. 48; Roper, 543 U.S. 551.


       While the holding of Dull is limited, the reasoning expressed by the court is not.
Throughout the opinion the court discusses its reasoning in terms of all juveniles, not just
juveniles convicted of aggravated indecent liberties with a child. When discussing the
culpability of juvenile offenders, the court focused on the characteristics of all juveniles.
302 Kan. at 51-52. The court noted that the legitimate penological goals served by
lifetime postrelease supervision applied less to juvenile offenders because juveniles have

                                              9
reduced culpability for their crimes and a lower risk of recidivism. 302 Kan. at 57-61.
The court expressly stated that none of the factors it considered in determining whether
juveniles should be treated differently than adults under the Eighth Amendment are crime
specific. 302 Kan. at 58-59. It is clear that none of the reasoning expressed in Dull is
applicable only to juveniles who were convicted of aggravated indecent liberties with a
child. Rather, the reasoning applies to the characteristics of all juveniles in general.


       The State argues that Medina's case is distinguishable from Dull because Medina
was convicted of a more serious offense. It claims that the holding in Dull "was framed
with the idea that since aggravated indecent liberties itself is a crime that does not involve
penetration, it is not as serious." Thus, the State argues that because the language in Dull
indicates that it is limited to aggravated indecent liberties with a child and Medina's
conviction of aggravated criminal sodomy was more serious, Dull does not apply here.


       The State's argument is unpersuasive for three reasons. First, the court in Dull did
not frame the issue as turning on the lack of penetration and the relative "un-seriousness"
of the crime. The State relies on the fact that, in his petition for review, Dull challenged
the constitutionality of lifetime postrelease supervision for a sex offense that did not
involve penetration and was committed by a juvenile. However, at oral argument the
issue was specifically reframed to be applicable to any juvenile convicted of aggravated
indecent liberties with a child and did not turn on details of the crime such as whether
penetration was involved. See Dull, 302 Kan. at 40-41.


       Second, as discussed above, our Supreme Court's language and reasoning
expressed in Dull did not indicate that its holding was specifically limited to aggravated
indecent liberties with a child; instead, the court's broad language and reasoning suggests
that it applies to all juveniles convicted of a sex offense. Third, drawing lines as the State
suggests in such a case-specific manner is not permitted in a categorical proportionality
challenge because creating such specific classifications of offenders "'obliterate[s] the

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distinction'" between case-specific and categorical challenges. Dull, 302 Kan. at 44
(quoting Mossman, 294 Kan. at 928).


       For all of these reasons, we agree with Medina that the holding in Dull
categorically applies to all juveniles convicted of a sex offense. As a result, we do not
need to engage in a separate analysis under Graham to determine whether lifetime
postrelease supervision is unconstitutional under the Eighth Amendment based on
Medina's particular conviction of aggravated criminal sodomy.


       The State makes a final claim that if Dull is not distinguishable and applies to all
juvenile sex offenses, then it was wrongly decided. However, the Court of Appeals is
duty bound to follow Kansas Supreme Court precedent absent some indication that the
court is departing from its previous position. State v. Meyer, 51 Kan. App. 2d 1066, 1072,
360 P.3d 467 (2015). There is no indication that our Supreme Court is departing from its
holding in Dull.


       We conclude that under Dull, mandatory lifetime postrelease supervision is
categorically unconstitutional for all juveniles convicted of a sex offense. As a result, the
imposition of lifetime postrelease supervision on Medina constitutes cruel and unusual
punishment under the Eighth Amendment to the United States Constitution. The lifetime
postrelease supervision portion of Medina's sentence for aggravated criminal sodomy is
vacated, and the case is remanded for resentencing. At resentencing, the district court
cannot impose any term of postrelease supervision for Medina's conviction of aggravated
criminal sodomy. See Dull, 302 Kan. at 61; State v. Kessler, 276 Kan. 202, 217, 73 P.3d
761 (2003) (where court's authority to impose sentence is controlled by statutory
procedure found unconstitutional, court has no authority to impose such sentence).


       Sentence vacated in part and remanded with directions.


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